Topic 9. LEGAL REGULATION OF BANKING OPERATIONS

Conducting banking operations by the Bank of Russia

The conduct by the Central Bank of the Russian Federation of deposit operations with resident banks in the currency of the Russian Federation is regulated by the Regulation approved by the Order of the Bank of Russia dated 30.01.96 N 02-22 (as amended by the Directive of the Central Bank of the Russian Federation dated 24.12.97 N 99-U).

The purpose of the operations being carried out is to regulate the liquidity of the banking system by attracting temporarily free funds of banks to deposits. The date and procedure for conducting deposit transactions are determined by the Board of Directors of the Bank of Russia.

Deposit operations are carried out by the Bank of Russia in the form of:

▪ deposit auctions;

▪ accepting bank funds on deposit at a fixed interest rate;

▪ accepting funds from the bank for deposit on the basis of a separate agreement defining the terms of the deposit.

Participants in deposit operations are the Central Bank of Russia, on the one hand, and resident banks, on the other hand.

Place of deposit operations - the Central Bank of the Russian Federation (Moscow).

When making a decision to conduct each specific deposit operation, the Bank of Russia sets the date of its execution and informs the mass media:

▪ type of deposit operation (interest-rate auction or acceptance of bank funds on deposit at a fixed interest rate);

▪ deposit term;

▪ minimum amount of a single application;

▪ the maximum initial interest rate on the deposit (during an auction) or a fixed interest rate (when accepting bank funds on deposit at a fixed interest rate).

The Bank of Russia on the next business day after the day of deposit transactions reports on the transactions. The message indicates the number of participants, the weighted average interest rate on deposits placed with the Bank of Russia. All information about the participation of a particular bank in the deposit operations of the Bank of Russia is a bank secret.

Interest on deposits placed with the Bank of Russia is accrued from the day following the day of the deposit operation (from the next day after the banks' funds are credited to the Bank of Russia deposit) until the day preceding the day the deposit is returned. Interest on deposits is paid when the deposit is returned to the bank in accordance with the established procedure.

In case of early withdrawal of a deposit placed with the Bank of Russia, interest is paid at a reduced interest rate of 0,1 of the rate for this deposit operation, set in the application.

The term (day) for the transfer and return of the deposit is established by the agreement (application). The Bank of Russia guarantees the timeliness and completeness of the return of the deposit and interest due. At the same time, the fulfillment of the obligation to return the deposit and interest due for the Bank of Russia is the debiting of funds from the deposit account of the applicant bank opened in the subdivision of the settlement network of the Bank of Russia. Assignment or sale by a bank of the right to a deposit placed by it with the Bank of Russia is not permitted.

Deposit auctions are held as a percentage competition for banks' bids for time deposits opened with the Bank of Russia, with a maximum initial interest rate set, which limits the amount of funds attracted from banks in deposits.

Applications accepted for the auction are ranked by the value of the declared interest rate, starting from the minimum.

Procedure for conducting other banking operations

Payments on the territory of the Russian Federation are made in cash and in non-cash form (clause 1, article 140 of the Civil Code of the Russian Federation).

The procedure for settlements with the participation of citizens depends on whether these payments are related to their entrepreneurial activities or not.

Settlements not in connection with the entrepreneurial activity of citizens are allowed both in cash and in a non-cash manner. Settlements with the participation of citizens related to their entrepreneurial activities, as a rule, should be made in a non-cash manner. However, at present there are no restrictions or prohibitions on settlements with the participation of citizens-entrepreneurs in cash.

In accordance with Article 4 of the Law "On Banks and Banking Activities" and the decision of the Board of Directors of the Central Bank of September 12, 1997, the maximum amount of cash settlements for one payment was established: between legal entities - 3 million rubles; for consumer cooperation enterprises for goods or agricultural products purchased from legal entities, as well as raw materials - 5 million rubles; for enterprises and trade organizations of the Main Directorate for the Execution of Punishments when purchasing goods from legal entities - 5 million rubles. (Letter of the Central Bank of September 29, 1997 N 525 "On the establishment of the maximum amount of cash settlements in the Russian Federation between legal entities").

Non-cash payments, as a rule, are made through banks in which legal entities and individuals have accounts. However, such settlements are also possible through banks in which accounts of individuals or legal entities making payments are not opened, or in favor of which the payment was made. Most often, this occurs when billing for collection, when the payer's bank does not have an account for the recipient of the corresponding funds.

Settlements by payment orders

In Art. 863 of the Civil Code of the Russian Federation determines that when making payments by payment orders (bank transfer), the bank that accepted the order undertakes, on its own behalf, but at the expense of the paying client, to make a payment to a third party - the recipient of the funds. That is, the bank is obliged not only to write off the required amount from the payer’s account, but also to ensure its transfer to the recipient’s account opened in the same or another bank (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 08.10.96 N 3061/96 [40]).

A bank transfer is a series of interconnected transactions carried out when a payment order is issued and accepted for execution; execution of a payment order and making a payment. Such transactions appear to be abstract, independent of the transaction that is the basis for the payment. This latter can be a contract of sale, delivery, contract, etc. It implies the obligation of the payer to the recipient of funds to pay for the goods delivered, work performed, services rendered. The invalidity of this transaction or the counterparty's failure to fulfill its counter obligation does not entail the invalidity of the settlement transaction.

The term for making a bank transfer from the beginning (i.e., from the moment funds are debited from the payer's account) to the end (i.e., until the funds are credited) may be established by law, other regulatory acts in accordance with it.

According to Article 80 of the Law on the CBR, the Bank of Russia sets the terms for non-cash payments. Their total period should not exceed two business days within the subject of the Russian Federation, five business days within the Russian Federation.

Not only the client of this bank, but also a person who does not have an account with it, can transfer funds. A different procedure may follow from the law, the banking rules established in accordance with it, or follow from the essence of settlement relations. One such exception is contained in Article 861 of the Civil Code of the Russian Federation, according to which settlements between legal entities should, as a rule, be carried out in a non-cash manner.

In addition to the Civil Code of the Russian Federation, the main regulations governing settlements by payment orders on the territory of the Russian Federation are: Regulations on settlements (section 3), Regulations on the organization of interbank settlements on the territory of the Russian Federation, communicated by letter of the Central Bank of July 9, 1992 No. 14, Regulations of the Central Bank dated November 25, 1997 No. 5-P “On non-cash payments by credit institutions in the Russian Federation” (Bulletin of the Bank of Russia, 1997, No. 81) (hereinafter referred to as the Central Bank Regulations dated November 25, 1997 No. 5-P), Directive of the Central Bank dated December 24, 1997 N 95-U "On the peculiarities of making payments by credit institutions (branches) and other clients of the Bank of Russia through the settlement network of the Bank of Russia when transmitting information via communication channels" (Bulletin of the Bank of Russia, 1997, N 91-92) ( hereinafter - Directive of the Central Bank of December 24, 1997 N 95-U), Regulation of the Central Bank of February 20, 1998 N 18-P “On multi-flight processing of payments in the Moscow region” as amended. Instructions of the Central Bank of March 24, 2998 N 191-U "On introducing amendments and additions to the Regulations of the Bank of Russia "On multi-flight processing of payments in the Moscow region" dated 20.02.98 N 18-P" (Bulletin of the Bank of Russia, 1998, N 11, p.33) (hereinafter - Regulations of the Central Bank of February 20, 1998 N 18-P), Temporary Regulations of the Central Bank of March 12, 1998 N 20-P “On the rules for the exchange of electronic documents between the Bank of Russia, credit institutions (branches) and other clients of the Bank of Russia when making payments through the settlement network of the Bank of Russia" (Bulletin of the Bank of Russia, 1998, No. 20. p. 41) (hereinafter - Regulations of the Central Bank of March 12, 1998 No. 20-P), letters and telegrams of the Central Bank.

Legal regulation of a bank transfer can also be carried out by banking business practices.

Presenting a payment order to the bank is an action that is performed by the client on the basis of a bank account agreement. It should be considered as an offer. The actions of the payer's bank aimed at executing the payment order are an acceptance.

If there is a bank account, he has the right not to execute the client's payment order only if it contradicts the law.

The form and content of the payment order must comply with the requirements of the law.

The form of the payment order is established by the letter of the Central Bank of October 14, 1997 N 529 "On changing the format of the payment order and the procedure for filling it out" (hereinafter - the letter of the Central Bank of October 14, 1997 N 529). In accordance with clause 2.2 of the Regulations on Settlements and clause 3.3.2 of State Bank Instruction No. 28, settlement documents must be signed by the head (first signature) and chief accountant (second signature) - persons authorized to manage the account, and sealed. In some cases, it is allowed to submit settlement documents with one first signature and (or) without a seal.

The requirements for the content of settlement documents are established by clause 2.1 of the Regulations on Settlements, by letter of the Central Bank of March 1, 1996 N 243 and by the letter of the Central Bank of October 14, 1997 N 529. In accordance with the specified regulatory acts, payment orders must contain:

a) the name of the settlement document;

b) number of the settlement document, date, month, year of its issue;

c) taxpayer identification number (TIN), name and account number of the payer with a credit institution (branch) or subdivision of the Bank of Russia settlement network;

d) taxpayer identification number (TIN), name and account number of the recipient of funds in a credit institution (branch) or subdivision of the settlement network of the Bank of Russia;

e) name, location, bank identification code (BIC) and account number for carrying out settlement operations of the payer's bank;

f) name, location, bank identification code (BIC) and account number for carrying out settlement operations of the recipient's bank;

g) type of payment;

h) payment term;

i) order of payment;

j) purpose of payment.

In accordance with clause 2.5 of the Regulations of the Central Bank of November 25, 1997 N 5-P, when a credit institution, a branch transfers funds from the correspondent account "LORO" and according to the accounts of interbranch settlements, the consolidated payment order of the sending bank of the payment, in addition to the generally established details, must contain the date payment (DPP), which is indicated in the "Reserve field" variable. DPP is set by the sending bank of the payment, taking into account the period of passage of documents (document run) to the bank - recipient of the payment (instruction, registers of upcoming payments). When transferring money through the settlement network of the Bank of Russia, no DPP is established.

In addition, the condition for accepting a payment order for execution is its preparation on the form of the established form (0401061) (Instruction of the Central Bank of December 3, 1997 N 51-U "On the introduction of new formats of settlement documents").

Features of non-cash payments in electronic form, including in the form of a bank transfer, are established by: Instruction of the Central Bank of December 24, 1997 N 95-U, Regulation of the Central Bank of February 20, 1998 N 18-P; Interim Regulation of the Central Bank of February 10, 1998 N 17-P "On the procedure for accepting for execution instructions of account holders signed by analogues of a handwritten signature, when making cashless payments by credit organizations" (hereinafter - Regulation of the Central Bank of February 10, 1998 N 17-P ); Regulation of the Central Bank of March 12, 1998 N 20-P.

The transfer of funds from one credit institution to another using electronic communication channels of the Bank of Russia can be carried out in almost any form of payment, although the most common of them is still a bank transfer.

In accordance with the Directive of the Central Bank of December 24, 1997 N 95-U, such a transfer of funds should be carried out in two stages and drawn up in two settlement documents. At the first stage, settlement participants transmit registers of directed payments via communication channels to servicing units of the Bank of Russia.

The directed payments register is understood as an electronic file generated by the settlement participant - the initiator of the payment, containing the serial number of the register, the date of its creation and the following mandatory details of each payment included in the register:

▪ payment document number;

▪ date of the settlement document;

▪ BIC of the settlement participant (credit institution, branch of the credit institution) - payer;

▪ number of the correspondent account of the settlement participant (credit organization, branch of the credit organization) - the payer;

▪ payer's personal account number;

▪ payment amount;

▪ BIC of the settlement participant (credit institution, branch of the credit institution) - recipient;

▪ number of the correspondent account of the settlement participant (credit organization, branch of the credit organization) - the recipient;

▪ recipient's personal account number;

▪ document code (type of transaction);

▪ payment priority group code.

Along with the mandatory details, depending on the accepted technology for processing accounting and operational information, the register may contain additional details.

The register of directed payments, provided for by the Directive of the Central Bank of December 24, 1997 N 95-U, should be considered as an electronic payment document of an abbreviated format.

The register of directed payments is signed by the electronic digital signature of the settlement participant and sent via communication channels for processing to the service unit of the Bank of Russia.

On the basis of the register of directed payments, the CBR makes appropriate entries on the correspondent accounts of credit institutions. On the next day after they are made, the settlement participant, from whose account the funds were debited based on the register of directed payments, is obliged to submit to the CBR one consolidated payment order on paper for the total amount of payments to the recipients of funds debited from the correspondent (personal) account of the participant settlements based on registers of directed payments. The consolidated payment order is drawn up on a form, the format of which is determined by the letter of the Central Bank of October 14, 1997 N 529.

Features of electronic settlements in the Moscow region are established by the Regulations of the Central Bank of February 20.02.98, 18 N XNUMX-P. In accordance with the specified regulatory act, payments can be made using two types of settlement documents in electronic form: full-format electronic payment documents (EPD) and electronic documents containing part of the details of payment documents on paper (abbreviated electronic payment documents - EDSF).

In accordance with clauses 2.7, 2.8 of the Regulations of the Central Bank of March 12, 1998 N 20-P, an electronic payment document of an abbreviated format is used only for interbank settlements. Therefore, the bank serving the client - the initiator of the payment, is obliged to send to the bank serving his counterparty the same settlement document, but on paper. A full-format electronic settlement document can be used both for interbank settlements and for transactions on client accounts. Therefore, in this latter case, banks do not exchange paper documents.

In accordance with paragraph 6 of the Regulations of the Central Bank of February 20, 1998 N 18-P, an electronic settlement document of an abbreviated format (EDSF) must contain the following details:

a) the number of the payment document;

b) the date of the payment document;

c) number of the payer's personal account;

e) TIN of the payer;

f) BIC of the payer's credit organization;

g) correspondent account number of the payer's credit institution;

h) code of the order of payment group;

i) the amount of the payment;

j) personal account number of the payee;

l) TIN of the recipient;

m) BIC of the credit institution of the payee;

o) correspondent account number of the recipient credit institution;

p) term of payment;

c) type of payment;

r) the date of receipt of the payment document from the client.

The EPD contains all the mandatory details of the EDSF, as well as the following details:

▪ name of the payer;

▪ name of the recipient;

▪ purpose of payment.

An electronic settlement document is signed by an analogue of the handwritten signature of its author (Article 160 of the Civil Code of the Russian Federation). This analog can be used not only in electronic, but also in "paper" calculations, for example, in the form of a facsimile reproduction of a signature (clause 1.4 of the Regulations of the Central Bank of February 10, 1998 N 17-P). An electronic digital signature (EDS) is a type of ASP used to draw up settlement documents on electronic media.

If the content of the payment order submitted to the bank does not meet the requirements specified in clause 1 of Article 864, the bank has the right to clarify it by sending the appropriate request to the payer. Such a request must be made immediately. If a response is not received within the period established by law, banking rules or an agreement (and in its absence - within a reasonable time), the bank has the right to return the payment order without execution. There are no standard deadlines for responding to a bank's request, and they can be set in a bank account agreement.

The rule specified in paragraph 2 does not apply to incorrectly executed payment orders (for example, the first signature is missing), which the bank has the right to immediately return without execution.

The procedure for settlements by payment orders is regulated by the law, as well as by the banking rules issued in accordance with it and the customs of business turnover applied in banking practice.

Thus, in accordance with clause 2.3 of the Regulations of the Central Bank of November 25, 1997 N 5-P, on the day of acceptance of a payment order from a client, a credit institution has an obligation to transfer funds for the intended purpose from a correspondent account (subaccount), other accounts opened for settlement transactions, subject to the following conditions:

1) the correct indication of the details of the payer, recipient of funds required for operations on the transfer of funds;

2) the presence of funds in his account in an amount sufficient to execute the accepted settlement document. The need to provide the payer's bank (or another bank executing an order to transfer funds) with appropriate monetary compensation has been confirmed by arbitration practice (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.08.96 N 666/96 [41]).

If there is no money in the payer’s account, a payment order, depending on the situation:

a) returned to the payer;

b) placed in file cabinet No. 2 in cases directly specified in regulations (see, for example, clause 1.8 of the letter of the Central Bank of Russia dated June 30, 1994 No. 98 “On the implementation of Decree of the President of the Russian Federation of May 23, 1994 No. 1005” On additional measures to normalize payments and strengthen payment discipline in the national economy" [42] (hereinafter - letter of the Central Bank of June 30, 1994 No. 98); letter of the Central Bank of July 5, 1996 No. 298; [43] c) paid for overdraft account, if the possibility of providing such a loan is provided for in the agreement.

A special feature of the procedure for carrying out settlement operations on LORO correspondent accounts is the rule that the correspondent’s payment orders are executed only if there are funds in the account. Only settlement documents presented by creditors in accordance with the law (clause 9.1 of the Central Bank Regulations of November 25, 1997 No. 5-P) can be placed in the file cabinet for the LORO correspondent account.

The order is paid in compliance with the order of payments established by law.

Execution of a payment order

The obligation of the payer's bank to execute the client's order to transfer funds is considered fulfilled at the time the money is credited to the recipient's account. From the same moment, the payer's monetary obligation to the recipient of funds arising from the supply agreement (purchase and sale, contract, etc.) can also be considered terminated.

A bank transfer transaction can be viewed as an agreement for performance to a third party (and not in favor of a third party). Therefore, the person indicated as the recipient of funds does not acquire the right to demand the transferred amount from the banks participating in the transfer, except for his own - the bank of the recipient of funds. From the moment the transferred amount is credited to his correspondent account, the recipient may demand that this money be credited to his account. This right arises from the bank account agreement.

The payer's bank has the right to involve other banks in order to perform operations on the transfer of funds to the account specified in the client's order. From a legal point of view, such actions should be considered as imposing the fulfillment of an obligation on a third party (Article 313 of the Civil Code).

In accordance with clause 2.2 of the Regulations of November 25, 1997 N 5-P, the client has the right to determine in the bank account agreement which of the ways settlement operations can be carried out on his instructions. If this condition is not included in the bank account agreement, the payment route (direction of payment to the recipient in the specified sequence of correspondent accounts (subaccounts) of credit institutions) is determined by the credit institution (branch).

Clause 2.8 of this Regulation allowed credit institutions to transfer customer funds not only through the Bank of Russia, but also through other credit institutions - to a third one for crediting to recipients' accounts (transit payments). At the same time, the bank - the sender of the payment, carrying out the transit settlement operation, is allowed to re-register the client's payment orders on its own behalf.

In accordance with paragraph 2 of the Directive of the Central Bank of December 24, 1997 N 95-U, the Bank of Russia performs the corresponding accounting operations on the client's account on the basis of the register of directed payments - an electronic settlement document received through the CBR communication channels. A consolidated payment order on paper (a hard copy of the register of directed payments), submitted by the client on the day after the Bank of Russia made the necessary accounting entries, is placed by him in the documents of the day and is kept as confirmation of the validity of debiting funds from the client’s account (clause 8 of the Instruction of the Central Bank dated December 24, 1997 N 95-U). In accordance with paragraph 10 of this regulatory act, funds are credited to personal accounts of clients by credit institutions participating in settlements using the Bank of Russia communication channels, based on settlement documents on paper.

The procedure for the execution of electronic settlement documents in the Moscow region has its own characteristics. In accordance with clause 26 of the Regulations of the Central Bank of February 20, 1998 N 18-P and clause 7.4 of the Regulations of the Central Bank of March 12, 1998 N 20-P, transactions by banks on client accounts are carried out:

a) when using full-format electronic settlement documents - on the basis of a payment document in electronic form and an extract from the bank's correspondent account;

b) when using an electronic settlement document of an abbreviated format - on the basis of a payment document on paper and an extract from the correspondent account of the servicing bank.

A consolidated payment order on paper for the total amount of payments debited from the correspondent account is issued by the bank and submitted to the CBR only when using electronic settlement documents in an abbreviated format.

When making electronic settlements without the participation of the Bank of Russia, the procedure for executing client orders is determined in contracts. However, most of all, the client who submitted the settlement document in electronic form is obliged to send the next day to the servicing bank its analogue on paper.

In this case, the operation of debiting funds from the account is carried out on the basis of a payment document in electronic form, and the “paper” one is used only for reporting. On the contrary, operations to credit received funds to the payee's account are not carried out until the payment document is received on paper.

In accordance with paragraphs 2.3 and 2.9 of the Regulations of the Central Bank of February 10, 1998 N 17-P, payment documents signed by the DSP are recognized as having equal legal force with other forms of instructions of account holders signed by them with their own hands.

The reliability of the ASP is ensured as follows. According to the Regulation of the Central Bank of February 10, 1998 N 17-P, verification of the authorship, integrity and authenticity of settlement documents signed by the TSA may be assigned to the recipient of the settlement document in accordance with a bilateral agreement or to a specially created Document Management Administration. The Administration is a legal entity acting as the registrar of HSA owners, means of creating and authenticating HSA. When organizing a document flow between more than two participants in electronic settlements, the HSA verification procedure should provide for the creation of an Administration.

The agreement concluded by the Administration with the participants of electronic document management must contain a list of procedures used to create an HSA and verify its authenticity. At the same time, the possibility of verification should be provided for each medium on which the document is drawn up. The agreement with the Administration must also contain the participant's obligation to recognize the legal force of payment documents sent by other participants and signed by the TSA, the owner of which is registered by this Administration.

When concluding a bilateral agreement between participants in electronic document management, the Administration may not be created, but the agreement must describe procedures that ensure the confirmation of the authenticity of payment documents sent (received) by participants, the responsibility of participants in document management for non-fulfillment (improper fulfillment) of their obligations, and also establishes a procedure for resolving disputes.

If non-cash payments are made with the participation of persons who have not joined the agreement on electronic payments, then along with settlement documents in electronic form, documents on paper can be used.

In accordance with section 3 of the Regulations of the Central Bank of March 12, 1998 N 20-P, the functions of the Document Management Administration for organizing electronic settlements through the communication channels of the Bank of Russia are assigned to the Central Bank. The specified normative act provides for the CBR to perform the following actions:

▪ registration of participants;

▪ storage of standards of software tools intended for creating and verifying digital signatures, as well as standards of documentation for these tools;

▪ preparation of opinions at the request of participants and authorized government bodies on the authenticity of electronic documents and carrying out procedures for verifying the correctness of the digital signature;

▪ sending notifications to participants about changes in the composition of participants, as well as means of creating and checking the correctness of the digital signature;

▪ participation in resolving disagreements with participants.

In accordance with paragraph 3 of the comments. article, the client has the right to demand from the bank information (notice) on the execution of the order (report). The procedure for drawing up and the list of data contained in such a notice must be provided for by law, banking rules established in accordance with it, or by agreement of the parties.

Transaction reports can be provided in the form of account statements for each transaction or periodically for a group of transactions performed. The regulations of the Central Bank establish different rules for the provision of statements of client accounts and LORO correspondent accounts of other credit institutions.

Rules for accounting in credit institutions located on the territory of the Russian Federation, approved. By order of the Central Bank of June 18, 1997 N 61, it was established that the procedure and frequency of issuing account statements should be determined in the card of signature samples and seal imprints. Usually, statements on the client's account are not issued after each transaction, but once every 3, 5, 10, etc. days. Previously, in practice, the procedure and frequency of providing such statements to the client were agreed directly in the bank account agreement.

In accordance with clause 2.7 of the Regulations of the Central Bank of November 25, 1997 N 5-P, the correspondent account agreement may provide for the obligation of the bank - the executor of the payment to send to the bank - the sender of the payment confirmation of the performance of each operation. Such confirmation is an account statement.

The specifics of providing account statements to Bank of Russia customers who make electronic settlements using the CBR communication channels are determined by CBR Directive No. 24-U of December 1997, 95. The Bank of Russia has the right to provide the client with a report on the operations carried out by him either in the form of an extract from a correspondent account or in the form of a register of payments made.

Settlements under a letter of credit

The term “letter of credit” is used in law and in practice, as a rule, in two meanings. Firstly, a letter of credit is an obligation of the issuing bank to the recipient of funds (beneficiary). Secondly, a letter of credit is understood as a settlement transaction, according to which the bank undertakes to carry out, at the client’s direction, one of the following actions:

a) make a payment to a third party;

b) pay the bill of exchange; c) accept it; d) take into account - against the submission by the recipient of documents specified by the terms of the letter of credit.

A letter of credit as a settlement operation includes two transactions.

One of them is between the payer and the issuing bank. The payer submits to the servicing bank an application for a letter of credit (offer), in accordance with which he proposes the bank to assume the obligation to the recipient of the funds specified in clause 1 of the comment. articles (i.e. issue a letter of credit). In pursuance of the bank account agreement, the issuing bank is obliged to accept the client's offer. Acceptance is carried out by issuing a letter of credit (clause 3 of article 438 of the Civil Code).

When executing the client's order, the issuing bank acts on its own behalf, but at the expense of the payer. Therefore, the legal nature of this transaction can be defined as a type of commission agreement. Consequently, in the absence of special rules governing these relations, it is permissible to apply the relevant general rules on a commission agreement.

The second transaction is between the issuing bank and the recipient of the payment - the beneficiary. In pursuance of the payer's letter of credit application, the issuing bank sends an offer to the beneficiary, from which it follows that it is ready to fulfill the payer's obligation (make a payment, pay, accept or discount a bill of exchange) if the beneficiary presents him with certain documents. The beneficiary accepts the offer of the issuing bank by submitting the required documents during the term of the letter of credit.

Both of these transactions are abstract, independent of the agreement between the payer and the recipient of funds, in pursuance of which settlements are made. The isolated, independent nature of letter of credit transactions is expressed: firstly, in the absence of the obligation of banks to check the compliance of the terms of the letter of credit (as well as the payer's instructions to change its terms, early closing, etc.) to the agreement between the payer and the recipient of funds; secondly, these transactions have an independent legal fate: the invalidity of the agreement between the payer and the recipient of funds does not entail the invalidity of letter of credit transactions.

The client's instruction to the bank to issue a letter of credit is executed in the form of an application for a letter of credit.

The application form for a letter of credit (0401063) was approved by the Central Bank Directive No. 3-U dated December 1997, 51 “On the introduction of new formats for payment documents.” The application for a letter of credit must contain the following details: name of the payment document, number and date of preparation, amount in figures and words; the name of the payer, his taxpayer identification number (TIN) and account number, the name of the payer's bank, his bank identification code (BIC) and the number of his correspondent account; name of the supplier's bank, its bank identification code (BIC) and correspondent account number; the name of the supplier, his taxpayer identification number (TIN), his account number; type of letter of credit; payment terms; name of goods (services), number, date of contract; a list of documents against the submission of which payment must be made; additional conditions; payment type; supplier signatures. A condition for the execution of a letter of credit may be acceptance by an authorized representative of the payer.

The obligation of the issuing bank to issue a letter of credit arises only when the payer's instruction is given by him by filling out an application form for a letter of credit approved by the CBR and containing all the essential conditions of the letter of credit (clause 5.8 of the Settlement Regulations).

4. The bank that has received the client's application and is obliged to issue a letter of credit is called the issuing bank. When the recipient of funds is served by the same bank as the payer, the issuing bank executes the letter of credit issued by it on its own. But if the recipient of funds is served by another bank, then the letter of credit must be issued by the issuing bank in the bank of the recipient of funds, which executes it (executing bank). The issuing bank, independently executing the letter of credit issued by it, is subject to the rules governing the activities of the executing bank.

In accordance with clause 5.4 of the Regulations on Settlements, letters of credit are considered covered (deposited), upon opening of which the issuing bank transfers the payer’s own funds or the loan provided to him at the disposal of the executing bank to a separate balance sheet account “Letters of Credit” for the entire period of validity of the issuing bank’s obligations.

In the presence of direct correspondent relations between banks, an uncovered (guaranteed) letter of credit can be opened in the executing bank by granting it the right to write off the entire amount of the letter of credit from the account of the issuing bank maintained by it.

Legal regulation of relations arising from settlements with letters of credit is carried out by Chapter 3 of the Civil Code, Chapter 46 of the Regulations on Settlements and Business Practices.

The Uniform Rules and Customs for Documentary Letters of Credit (ICC Publication No. 500, edition 1994) and the Uniform Rules for Interbank Reimbursement for Documentary Letters of Credit (ICC Publication No. 525) are often used by arbitration courts when considering disputes arising in connection with the execution by banks of letters of credit orders from clients on the territory of the Russian Federation (internal settlements) as business practices in the absence of references to them in letters of credit. It is unlikely that such a practice can be recognized as justified.

Sometimes an application for a letter of credit submitted by the payer to the servicing bank, or in the order of the issuing bank to the nominated bank, contains an indication that relations under the letter of credit are governed by the Uniform Rules and Customs for Documentary Letters of Credit (hereinafter - the Uniform Rules). In this case, they can be used to regulate legal relations arising in connection with the issuance and execution of a letter of credit as a condition of the contract.

If there is no reference to the Uniform Rules in the letters of credit, they cannot be used to regulate relations between participants in letter of credit transactions in internal settlements. In this case, the Uniform Rules cannot be considered as an internal Russian custom. They are a private codification of international banking practices produced by the International Chamber of Commerce. The custom, like the other norm of civil law, has a territorial character. Therefore, international custom cannot be applied on the territory of the Russian Federation as its internal custom. If there is no reference to the Uniform Rules in the letters of credit, they can only be used in international settlements.

As a general rule, before the expiration of its term, a letter of credit can be changed or canceled by the issuing bank without the consent of the recipient of funds and without the risk of being held liable for this. Such a letter of credit is called revocable. Amendment or cancellation (full or partial) of a letter of credit is carried out by the issuing bank at the direction of the payer. A revocable letter of credit cannot be confirmed (see comments to Art. 869).

If the recipient of funds has complied with the terms of the letter of credit, and payment has not been made, then the beneficiary has the right:

a) present appropriate requirements to the issuing bank, whose obligation to the recipient of funds to make a payment (pay, accept or discount a bill of exchange) arises after it fulfills the terms of the letter of credit;

b) present a claim against the payer, whose obligation to pay follows from the supply contract (contract, etc.).

The issuing bank must notify the executing bank, and the latter - the recipient of funds, about all orders of the payer, changing or early canceling the revocable letter of credit. If, prior to the receipt by the nominated bank of such notification, the recipient of funds has already submitted documents that meet the original conditions of the letter of credit, the nominated bank must make payment or other operations on it on the same terms.

Each letter of credit must clearly indicate whether it is revocable or irrevocable. In the absence of such a condition, the letter of credit is revocable.

Article 5 of the Uniform Rules uses the opposite principle: a letter of credit is considered irrevocable, unless otherwise specified in it. Therefore, if the letter of credit contains a reference to the Uniform Rules, but its type (revocable or irrevocable) is not indicated, the letter of credit should be considered irrevocable.

An irrevocable letter of credit cannot be canceled or changed without the consent of the recipient of funds. If, despite the irrevocable nature of the letter of credit opened by him, the issuing bank still notifies the beneficiary of its cancellation or change in the terms of payment, such notification will not have effect. The recipient of funds has the right to submit to the bank a list of documents corresponding to the initial conditions of the letter of credit, and demand the fulfillment of his obligation.

A type of irrevocable letter of credit is a confirmed letter of credit. The nominated bank confirms an irrevocable letter of credit at the request of the issuing bank. This means that the executing bank assumes, along with the issuing bank, the obligation under the letter of credit. If the recipient of funds fulfills the conditions of the letter of credit, each of these banks will be responsible to him independently, and he has the right to present the corresponding requirements to any of the banks or the payer - at his choice. An irrevocable confirmed letter of credit can be changed or canceled only with the consent of both the recipient of funds and the nominated bank.

From the moment the letter of credit is opened, the obligation of the issuing bank to the recipient of funds to execute this letter of credit arises if the beneficiary fulfills all its conditions. A similar obligation of the confirming bank arises at the time of its confirmation of the letter of credit of the issuing bank. The executing bank, if it is not a confirming bank, does not have this obligation to the payee, since it is only a representative of the issuing bank, on whose behalf it acts.

If during the term of the letter of credit the beneficiary submits to the executing bank (issuing bank) documents confirming its compliance with all the conditions of the letter of credit, the transaction between him and the issuing bank (confirming bank) is considered concluded, and the obligation of the latter to execute the letter of credit arises.

The execution of a letter of credit should be understood as the performance by the debtor bank of those actions that constitute the content of its obligation: payment of the payer's debt; payment, acceptance or accounting of a bill of exchange (clause 1 of article 867 of the Civil Code). If the object of the obligation of the issuing bank (confirming bank) is the action to provide the beneficiary with funds (in cash or non-cash form), then its obligations should be considered as monetary.

The expenses of the executing bank are subject to reimbursement by the issuing bank if the operations carried out under the letter of credit comply with its terms. These expenses include amounts to be paid to the recipient of funds and the operating expenses of the nominated bank. The procedure for reimbursing the executing bank for amounts paid to the recipient is determined by clause 5.4 of the Settlement Regulations. These amounts can be debited either from the Letters of Credit balance account, to which they were credited by order of the issuing bank, or from the correspondent account of the issuing bank with the executing bank. In the latter case, the issuing bank must clearly express its consent to the debiting of these funds from its account either when issuing a letter of credit or directly in a correspondent agreement.

The procedure for reimbursement of operating expenses of the executing bank is not defined by law and can be decided in the contract.

In addition to reimbursement of expenses incurred by it, the executing bank has the right to receive appropriate remuneration from the issuing bank. This issue can also be resolved in a contract.

The relationship between the issuing bank and the nominated bank covers:

1) the design of the agency agreement, if the executing bank has not confirmed the letter of credit, and 2) the design of the commission agreement, if the executing bank is also a confirming bank. Thus, the obligation of the issuing bank to reimburse the executing bank for the expenses incurred by it and to pay remuneration arises from the agreement concluded by them and does not depend on whether the issuing bank itself has received appropriate compensation from the paying client.

Evaluating the documents submitted by the recipient of funds, the executing bank must determine whether they comply with the terms of the letter of credit on formal grounds. This bank checks the correctness of the registration of the register of accounts, the compliance of the signatures and seals of the supplier on it with the declared samples, etc. - transport documents, numbers of postal receipts (when sending goods through a communications company), numbers and dates of acceptance documents and the type of transport by which the goods were sent, when the goods are received by the buyer's representative at the supplier's place. If the terms of the letter of credit provide for the acceptance of an authorized buyer, the presence of an acceptance inscription and the compliance of the signature of the authorized person with the submitted samples are checked.

Normative acts do not contain detailed rules for evaluating other documents submitted by the recipient of funds to the nominated bank. It is assumed that the latter is obliged to establish whether they comply with the terms of the letter of credit only on the surface. For example, in some cases it is quite enough to compare the titles of the documents submitted to the executing bank with those listed in the letter of credit application. However, if the application for a letter of credit contains precise instructions as to which authority should issue these documents and what are the requirements for their content and execution, these circumstances are subject to verification by the nominated bank. In any case, the bank is obliged to verify whether the documents submitted to it relate to the goods for which the letter of credit was issued or not. To do this, it is enough to compare the data on the goods in the application for a letter of credit and in the shipping documents, account registers and other documents submitted to the bank by the recipient of funds. If the documents contain conflicting information about the goods, the refusal to pay is legal. However, this does not require that the documents contain wording that literally coincides with the instructions of the letter of credit application. It is sufficient that the words of the client's instructions and the submitted documents have the same meaning.

The way out of disputable situations is to send the issuing bank, and the last - to the payer, a request to clarify the nature of its instructions. When this is not possible for any reason, the nominated bank should be released from liability if it interprets the instructions received in a reasonable way.

Revision of paragraph 1 of the comment. article allows us to conclude that the executing bank is obliged to verify the fulfillment of the conditions of the letter of credit only by examining the documents submitted by it. The executing bank cannot and should not find out whether the actual circumstances correspond to the content of the documents of the beneficiary, for example, whether the goods have been shipped, whether they are of proper quality, etc. In addition, banks are not required to examine the submitted documents in order to establish their authenticity. If the forgery of these documents cannot be detected by simple visual perception, all negative consequences are assigned to the payer. However, if the executing bank has information that unequivocally confirms the fictitiousness of outwardly favorable documents of the beneficiary, the bank is obliged to refuse to pay funds from the letter of credit. Execution of a letter of credit against obviously fictitious documents is unacceptable.

If the executing bank refused to accept the documents submitted to it, it is obliged to immediately inform the recipient of funds about this, as well as inform him of the reasons for such refusal.

The executing bank is obliged to submit to the issuing bank a report on the executed order. Documents paid by the executing bank at the expense of a letter of credit can be submitted as a report. If, in the opinion of the issuing bank, these documents do not correspond to the terms of the letter of credit, then it has the right to refuse to accept them. In this case, an appropriate message should be sent to the executing bank.

Relations between the payer and the issuing bank are covered by the instruction of the commission agreement. Therefore, despite the absence in the comments. article of the relevant norm, the payer also has the right to demand from the issuing bank (commission agent) a report on the execution of the order (Article 999 of the Civil Code). If he considers that the documents submitted by the issuing bank do not correspond to the terms of the letter of credit on their outward appearance, the payer has the right to refuse to accept the execution.

As a general rule, liability for non-performance or improper performance of a letter of credit transaction is contractual in nature. Therefore, the issuing bank is responsible to the payer, and the executing bank is responsible to the issuing bank. Presentation by the payer of claims directly to the executing bank is not allowed, with the exception of cases provided for in paragraph 3 of the comment. articles.

Given that the letter of credit is an obligation of the issuing bank, if the executing bank unjustifiably refuses to pay the recipient of funds the appropriate amount, the latter may present its claims against the issuing bank: as a general rule, the executing bank does not bear any obligation to the recipient of funds. This rule fully applies primarily to an uncovered (guaranteed) unconfirmed letter of credit. However, if the claim of the recipient of funds is based on the fact that the executing bank did not fulfill the conditions of the covered (deposited) unconfirmed letter of credit, then the court has the right to satisfy it at the expense of the executing bank.

At the same time, it is important to take into account that the claim of the recipient of funds against the issuing bank (executing bank) will be based on its failure to fulfill obligations under the letter of credit transaction (reason for claim). Since the letter of credit obligation of the issuing bank (confirming bank) is monetary, its improper fulfillment (non-fulfillment) gives the payee the right to collect interest from this bank, provided for in Article 395 of the Civil Code.

A claim may be brought by the beneficiary even after the expiration of the letter of credit, if the necessary documents were submitted by him to the executing bank on time.

If the letter of credit obligation is violated as a result of actions (inaction) of the executing bank, and the claim of the recipient of funds was satisfied at the expense of the issuing bank, the latter has the right to recover what was paid from the executing bank by way of recourse.

In addition to a lawsuit against banks, the recipient of funds may file a lawsuit against the payer to force him to pay under the main contract, since the settlements were not completed as a result of improper actions of the banks.

The right to choose the defendant in the situation described belongs to the payee. However, the latter is not entitled to receive the amount of the debt twice.

In case of incorrect payment of funds under a confirmed (both covered and uncovered) or covered unconfirmed letter of credit, the payer has the right to present his claims directly to the executing bank.

As an exception to the general rule (clause 1 of article 872), the court may impose liability for improper execution of the letter of credit on the person with whom the plaintiff is not in direct contractual relations, i.e. not on the issuing bank, but on the executing bank.

However, it should be remembered that filing a claim against the executing bank, and not against the issuing bank, is a right, and not an obligation, of the payer. In arbitration practice, there are many cases when payers insist on recovering losses caused by incorrect payment by the executing bank of the amount of the letter of credit, namely from the issuing bank (stronger in economic terms). The court has no reason to refuse such a request.

P.3. Art. 872 of the Civil Code of the Russian Federation can be applied only in the cases indicated by it. In other situations, the general rule of paragraph 1 of Article 872 is subject to application. For example, the amount of funds under the letter of credit not used by the recipient was transferred by the executing bank to the issuing bank, but turned out to be lost due to the fault of the intermediary bank. The court refused the payer to recover the losses incurred by him from the executing bank and reasonably recovered them from the issuing bank.

In the event that, as a result of improper execution of a letter of credit, its amount ended up with the beneficiary, who did not fulfill his obligations under the contract with the payer (for example, did not ship the goods), the payer may sue both banks and the beneficiary.

Moreover, the basis of the claim against the banks will be the improper execution of the letter of credit transaction by them, and the subject - the claim for damages. The subject of the claim of the payer to the payee is the demand for the return of the unjustly received amount.

In practice, a problem has arisen related to determining the proper defendant in cases where the payer's losses arose both through the fault of the recipient of the funds and through the fault of the executing bank. Usually the following situation develops. The executing bank pays the amount of the letter of credit, allowing for more or less serious deviations from its terms. There are cases when the executing bank simply corrects an error made by the payer when filling out a letter of credit application. For example, the terms of one letter of credit stipulated that payment should be made against railway bills of lading. Meanwhile, the contract for the carriage of goods by rail is formalized using freight receipts, which the payer did not take into account. The bank made payment against the cargo receipts presented to it. Subsequently, they were recognized as counterfeit, the goods were not shipped, and therefore the payer suffered losses, which he tried to recover from the executing bank. The latter believed that the proper defendant should be the recipient of the funds who submitted the false documents. Practice solves this problem in different ways. In some cases, the arbitration court invites the payer to file a claim directly with the recipient of the funds, and the executing bank is released from liability (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 08.10.96, 7729 N 95/44 [24.12.96]). In other similar circumstances, losses are borne by the bank (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 2700, 96 N 45/XNUMX [XNUMX]). It is likely that, given the specific situation, the court may impose liability on both the banks and the payee.

However, if the nominated bank is forced to pay the payer the entire amount of losses incurred by him as a result of the actions of both the bank and the payee, the nominated bank is entitled to recover the corresponding amount from the payee by way of recourse.

In paragraph 1 of Art. 873 of the Civil Code of the Russian Federation provides for grounds for closing a letter of credit, the range of which is exhaustive:

a) the letter of credit may be closed due to the expiration of its validity in the executing bank, specified by the payer in the letter of credit application;

b) before the expiration of the term, it can be closed at the request of the recipient of funds, if such an opportunity is provided for by the terms of the letter of credit. If it is absent, the executing bank should not comply with the order of the recipient of funds to close the letter of credit;

c) at the request of the payer, if the letter of credit is revocable.

The executing bank must notify the issuing bank about the closing of the letter of credit, and the latter - the payer.

Amounts unused under a covered (deposited) letter of credit must in all cases be returned to the issuing bank for subsequent crediting to the payer's account. In this case, the “Letters of Credit” account with the executing bank is closed.

The legislation does not specify the term for returning the unused amount of the letter of credit to the issuing bank. Therefore, such a refund must be made within the period usual for transactions on the transfer of funds: no later than the next banking day after the receipt of the corresponding document by the executing bank or the expiration of the corresponding period.

The issuing bank must credit the funds received to it to the payer's account from which they were deposited, debiting them from the "Letters of Credit for Payment" account, no later than the next day after receipt of funds from the nominated bank. For delay in fulfilling this obligation, the issuing bank may be held liable under Article 856 of the Civil Code of the Russian Federation.

Settlements for collection

The term “collection operations” is used to refer to various actions of credit institutions aimed at obtaining payment and (or) acceptance from the debtor (payer). They are carried out on the basis of a collection order from the payee on his behalf and at his expense. For some types of collection operations, the bank may be required to issue commercial documents to the payer upon receipt of acceptance and (or) payment from him.

A collection transaction is an abstract transaction, independent of the contract between the payer and the recipient of funds, under which settlements are made.

A collection order can be executed either with the help of various settlement documents (payment request, payment request-order, collection order), or in another way (check, bill of exchange).

The bank that received the collection order from the client is called the issuing bank. A bank that submits a demand for payment and (or) acceptance directly to the obligated person is called the executing bank.

In cases where the issuing bank provides settlement and cash services to both the payer and the recipient of funds, it is simultaneously the executing bank. The issuing bank performs the same role in those cases when, in accordance with banking rules, the recipient of funds is obliged to send settlement documents directly to this bank, bypassing his own. Thus, in accordance with clause 285 of the Rules of the State Bank No. 2, collection orders with the attachment of executive documents, as well as instructions for debiting funds from the accounts of single-kind payers, are submitted by the collector for collection directly to the bank institution where the payer's account is maintained.

Payments in the manner of collection can be made both with acceptance and without the acceptance of the payer - in cases provided for by law.

If the settlements are carried out with the payer's acceptance (acceptance form) or it is only about receiving an acceptance from the obligated person, then the issuing bank has the following obligations:

a) ensure that the obligated person submits a demand to make payment and (or) acceptance along with the relevant documents;

b) ensure that the appropriate funds are credited to the recipient's account or hand over the accepted documents to him, if the payment or acceptance was made by the payer.

If the settlements are made without the payer's acceptance, and the documents submitted by the recipient fully comply with the requirements of the law, then the issuing bank is obliged to ensure an indisputable (acceptance-free) debit from the payer's account - if there is money on it and credit the amount received to the account of the payee.

Since the issuing bank that executes the collection order acts on behalf of its client and at his expense, this bank is his representative.

The issuing bank that has received the client's order is entitled to engage another bank (executing bank) for its execution, by sending it the relevant documents. The legislation of the Russian Federation on the performance of collection operations allows the direction of settlement documents from bank to bank in the absence of contractual relations between them.

Unlike a bank transfer, the executing bank cannot be involved in the execution of a collection order on the basis of Article 313 of the Civil Code (imposing the execution of an obligation on a third party). Collection involves the receipt of money from the obligated person. In this case, the demand to make payment (or acceptance) addressed to the obligated person must be stated not by his creditor, but by a third party. A payment to a third party can lead to the repayment of an obligation only if this third party has the appropriate authority from the creditor, i.e., is his attorney. Otherwise, the debtor risks making a payment to the wrong person. Therefore, the executing bank can only be a representative of the creditor - the recipient of the payment. Thus, the executing bank is involved by the issuing bank in the execution of the collection operation on the basis of subordination. The relationship of representation between the recipient of funds and the payer's bank (executing bank) in this latter case arises directly from the law and the fact that the payer's bank received a collection order.

The peculiarity of the collection operation is manifested in the dual legal status of the payer's bank. On the one hand, presenting its client with documents demanding payment (or acceptance) and sending the received amounts (acceptance) to the bank of the recipient of funds, the payer's bank acts as an executing bank, i.e., as a representative of the recipient of funds. On the other hand, when debiting money from its client's account on the basis of documents accepted by him, the payer's bank acts as a representative of the payer. Dual representation in banking is normal.

At the same time, the CBR cannot be considered a representative of the recipient of funds precisely because the collection order of the latter is not sent to him.

The above feature of the collection operation changes the moment of fulfillment of the obligation to pay for the delivered products (work performed, services rendered). By virtue of Article 316 of the Civil Code of the Russian Federation, the place of performance of a monetary obligation is the location of the creditor - a legal entity at the time the obligation arises. However, the place of performance of a monetary obligation determined by the Civil Code of the Russian Federation may be changed by law, business customs, or assumed otherwise in connection with the essence of the obligation. The mechanism of the collection operation indicated above implies a completely different (due to the nature of the relations under consideration) place for the fulfillment of a monetary obligation than is determined by the conditionally dispositive norm of Article 316 of the Civil Code of the Russian Federation. A payment to the representative of the creditor extinguishes the monetary obligation (as if it were made to the creditor himself) precisely at the location of the representative (and not the creditor). Such a representative of the creditor, who directly from the debtor-payer receives the amount of his debt, is the executing bank. It follows that the obligation of the payer to make settlements with the recipient of funds for the supplied products (work performed, services rendered) terminates at the location of the executing bank. The moment of fulfillment of this monetary obligation should be considered the moment the amount of debt is written off from the payer's current account. It is from this moment that the payer's monetary obligation to make settlements is considered to be duly fulfilled.

The procedure for making settlements for collection is regulated by the Regulations on Settlements, paragraphs 25, 26, 279-292, 305 of the Rules of the State Bank No. 2, telegram of the Central Bank of September 02.09.92, 218 No. 92-30, letter of the Central Bank of June 1994, 98 No. XNUMX.

Since during settlements, in the manner of collection, the payer's monetary obligation is considered fulfilled at the time the funds are debited from his account, then in the future the payee acquires the right to demand the amount not received by him from the banks participating in the collection operation.

Since the issuing bank and the executing bank are representatives of the payee, each of them can be held liable by the principal for non-execution or improper execution of the order. At the same time, one should proceed from the fact that between these banks the payee has contractual relations, therefore they can be brought to contractual (and not extra-contractual) liability. This conclusion, which is obvious in relation to the beneficiary's bank (issuing bank), needs to be explained in relation to the payer's bank (executing bank). A contractual relationship is formed between the executing bank and the payee to perform a specific collection operation. Therefore, in accordance with paragraph 3 of Article 874 of the Civil Code of the Russian Federation, the executing bank may be held liable to the recipient of funds for improper execution of his instructions. In particular, the requirement of the recipient of funds to banks for the payment of the principal amount of funds debited from the payer's account is a requirement to fulfill the obligation in kind.

If the settlement transaction was not executed or executed improperly due to the fault of the CBR, then the recipient of funds does not have the right to present a direct claim against him due to the absence of contractual relations between them (the CBR is not a representative of the recipient of funds). In this case, the recipient of funds has the right to present a claim for damages to the executing bank. By virtue of Articles 313 and 403 of the Civil Code of the Russian Federation, this bank is responsible for the actions of the CBR. The paid amounts can be recovered by the payer's bank as a recourse from the direct culprit - the CBR.

A bank that has received a collection order from the issuing bank along with the necessary documents must take the following actions to execute it.

With the acceptance form of payment:

a) to formally check the received documents in terms of their compliance with the law, banking rules and customs;

b) present the received documents to the payer for acceptance;

c) if the payer accepts the received demand and there is money in the account, write off the funds and ensure their transfer to the payee's bank for crediting to his account.

In case of indisputable (acceptance-free) debiting of funds:

a) to formally check the received documents in terms of their compliance with the law, banking rules and customs;

b) if there is money on the payer's account, write off the required amount and ensure its transfer to the payee's bank for crediting to his account.

2. The forms of payment request (0401061), payment request-order (0401064) and collection order (0401061) are established by Directive of the Central Bank of December 3, 1997 No. 51-U “On the introduction of new formats of payment documents.”

The payment request must contain the following details:

1) the name of the settlement document;

2) date and number of the settlement document;

3) type of payment;

4) payment terms;

5) term for acceptance;

6) the name of the payer, his taxpayer identification number (TIN); his current account number;

7) the name and location of the payer's bank, its bank identification code (BIC); his correspondent account number;

8) name and location of the beneficiary's bank; his bank identification code (BIC); his correspondent account number;

9) name of the recipient of funds, his taxpayer identification number (TIN); his current account number;

10) the amount in words and figures;

11) term of payment;

12) order of payment;

13) type of payment;

14) the name of the goods, work performed, services rendered;

15) signatures and seal of the recipient of funds;

16) field for marks of the beneficiary's bank and notes on partial payments;

17) date of placement in the card file.

In the payment request, in the “Term of payment” field, the recipient of the funds indicates “without acceptance” or “with acceptance”. In the case of direct debit, in the “Terms of payment” field, a reference is made to the relevant federal law that granted the recipient of funds the right to direct debit. When using a payment request form as a collection order (instruction), the fields “Term of payment” and “Term for acceptance” are not filled in; in the field “Name of goods, work performed, services rendered...” the name of the collection, a link to legislation, the name of , number and date of the document on the basis of which the collection is made.

The form of payment request-order is similar to the form of payment request with the difference that the first does not contain the “Term of payment” attribute, but an additional field for the payer’s acceptance is added.

Payment requests, payment requests-orders, collection orders issued not on established standard forms are not accepted by banks for execution (Shevchuk D.A. Banking operations. Principles. Control. Profitability. Risks. - M .: GrossMedia: ROSBUH, 2007) .

When checking the collection order and its attachments, the correctness of their execution, the presence of details, references to regulations, etc. are determined. At the same time, the documents attached to the collection order must correspond to it in appearance (Shevchuk D.A. Accounting in banks: Lecture notes - Rostov-on-Don: Phoenix, 2007). For example, in practice there were cases when the name of the collector in the collection order did not coincide with the name of the collector in the order of the arbitration court attached to it. If the bank identifies any shortcomings in the documents submitted to it that prevent the execution of the order, it is obliged to immediately notify the person from whom this order was directly received. This person can be either the issuing bank or the recipient of the funds. After this, the executing bank has the right to suspend the execution of the order without falling into delay. The deadline for eliminating these shortcomings in the Civil Code is not defined. Probably, we are talking about a “reasonable” period of time required to receive a notification from the executing bank by mail (or using other types of communication), as well as to draw up and send a response. If the collection order was received by the executing bank from the issuing bank, then the addressee of its notification will be the recipient of the funds. In this case, the notice must first be sent to the issuing bank, and the period for response must be extended accordingly. If these deficiencies are not eliminated within a reasonable time, the bank has the right to return the documents without execution.

If settlements are made with the consent (acceptance) of the payer, then the executing bank is obliged to present to him the corresponding copy of the settlement document along with the documents attached to it, if any. They are presented to the payer for acceptance in the form in which they were received, with the exception of the marks and inscriptions of the bank necessary for processing the collection transaction. If settlements are carried out using payment requests and payment requests-orders, then in accordance with the letter of the Central Bank of June 30, 1994 No. 98, another corresponding copy of these settlement documents will be placed in the file cabinet of off-balance sheet account No. 9927 “Settlement documents awaiting acceptance for payment” (card file No. 1). Payment requests are paid in the order of preliminary negative acceptance, and payment requests-orders - in the order of preliminary positive acceptance. The acceptance period is 3 business days, not counting the date of receipt of settlement documents by the bank.

Clause 1 of Article 15 of the Federal Law of July 14, 1997 “On State Regulation of Agro-Industrial Production” [46] provides that settlements between legal entities - buyers and suppliers of agricultural products must be carried out by collection, unless a different procedure is provided for by the agreement. In this case, a special period has been established for acceptance: the general period is up to 10 days, and for perishable goods - up to 5 days after receipt of payment documents by the payer’s bank. In this regard, the question of interpretation of this norm in relation to the activities of the executing bank servicing payments for agricultural products arose.

In a letter dated September 26.09.97, 03, N 31a-1-992/15, addressed to the Association of Russian Banks, the Central Bank reported that an analysis of Article 2007 of the above-mentioned Law and business customs used in banking practice allows us to draw a conclusion about the possibility of settlements for consumers of agricultural products , raw materials and food with commodity producers on the basis of payment requests issued by the latter, which are a settlement tool for writing off funds from payers’ accounts in cases where the collection form is provided for in agreements between suppliers and buyers and their banks for previously shipped (issued) material assets, work performed, services provided and other claims, invoices for which are not paid by payers, and paid by buyers in the order of preliminary acceptance (Shevchuk D.A. Accounting in banks: Lecture notes. - Rostov-on-Don: Phoenix, XNUMX).

When choosing the terms for acceptance, the servicing bank should be guided by the client’s instructions about the nature of the products being paid for. Taking into account the fact that the above-mentioned Law increases the general period of preliminary acceptance compared to the normative one to 10 days, and for perishable goods - up to 5 days, when the supplier issues a payment request, the corresponding inscription “acceptance period 10” must be placed in the upper right corner of the document days" or "acceptance period 5 days".

The payer has the right to refuse to accept payment requests on the grounds provided for in the contract, with a mandatory reference to its clause and an indication of the motive for refusal. Refusal of acceptance is drawn up in the prescribed form. If within three days (or another period established by law) a refusal to accept payment requests is not received, they are considered accepted and payable.

The payment request consists, firstly, of a collection order to the bank to receive the funds due to the client and, secondly, a demand addressed to the payer to make a payment on a previously arisen monetary obligation. The last requirement cannot be considered as an offer addressed to the payer, since his obligation to make settlements has already arisen on the basis of the relevant agreement. In this regard, clause 2 of Article 438 of the Civil Code, which provides for the conditions under which silence is recognized as acceptance, is not applicable in this case.

The client's consent to debit funds from his account is a unilateral transaction that gives rise to the obligation for the servicing bank to debit the funds and send them to the recipient. Therefore, to change or cancel this transaction, the will of the person who made it is sufficient. Therefore, as long as the amount of the payment request has not yet been debited from the correspondent account of the payer's bank, the payer has the right to cancel his acceptance.

In case of settlements by payment requests-orders, the consent of the payer is formalized by the signatures of persons authorized to dispose of the settlement (current) account, and a seal imprint on the corresponding copies.

If there are no funds in the payer’s account, the payment documents accepted by him are placed in a file cabinet in off-balance sheet account N 90902 “Settlement documents not paid on time” (card file No. 2).

For presentation for payment of bills transferred to the bank for collection, the legislation establishes other rules. In accordance with Part III of Section 2 of the Recommendations on the use of bills of exchange in economic circulation, communicated by letter of the Central Bank of September 9, 1991 N 14-3/30 “On banking operations with bills of exchange”, [47] a bill of exchange, equipped with an authorization signature, is transferred for collection in the name of the bank. Having accepted a bill of exchange for collection, the bank is obliged to promptly send it to the place of payment, and notify the payer of this with a summons (Shevchuk D.A. Fundamentals of Bank Audit: Lecture Notes. - Rostov-on-Don: Phoenix, 2007).

The executing bank presents debt documents to the payer within the period established by them for the execution of the corresponding monetary obligation. Therefore, it is absolutely necessary that they arrive at the executing bank in advance. Otherwise, the latter cannot be held responsible for the untimely presentation of debt documents to the obligated person.

If the documents are payable at sight, the executing bank must present them for payment immediately upon receipt. If the documents are due for payment at a different time, he must submit them for acceptance immediately, and for payment - on the day of the deadline for the fulfillment of the corresponding monetary obligation indicated in the document itself.

The period for presenting a promissory note or bill of exchange for acceptance or payment is calculated according to the rules established by Articles 21-23, 34-37, 72-74 of the Regulations on bills of exchange and promissory note, approved. by resolution of the Central Executive Committee and Council of People's Commissars of the USSR of August 7, 1937 N 104/1341, [48] and subsidiary - Article 190-194 of the Civil Code in the part that does not contradict the Regulations. When calculating the period for other monetary obligations, one should be guided by Articles 190-194 of the Civil Code.

Partial payments can be accepted in cases where it is established by banking rules or if there is a special permission in the collection order.

The possibility of partial payments when settling payment requests, payment requests-orders is provided for by banking rules (Instruction of the Central Bank of December 3, 1997 N 51-U “On the introduction of new formats of settlement documents”).

The right of an obligated person to make partial payments on a bill of exchange is provided for in Article 39 of the Regulations on a bill of exchange and a promissory note.

In accordance with clause 4.9 of the Regulations on Payments, a check stamped “Russia” must be paid only in full.

The funds debited by him from the payer's account (collected amounts), the executing bank is obliged to immediately transfer to the disposal of the issuing bank. This means that the executing bank must either credit these funds to the correspondent account of the issuing bank (in the presence of direct correspondent relations), or instruct the CBR to transfer the payment to the correspondent account of the issuing bank in the RCC to credit it to the beneficiary's account. In this case, the CBR is involved in the execution of the money transfer operation on the basis of Article 313 of the Civil Code of the Russian Federation.

The Civil Code's requirement for the executing bank to "immediately" carry out the above actions means that it must carry them out without delay within the time limits determined by banking rules and banking customs for settlement operations.

The executing bank has the right to withhold from the amounts collected by it the remuneration due to it, reimbursement of costs and expenses, unless a different procedure for the said payments is established by the agreement or banking rules. In the presence of direct correspondent relations between the issuing bank and the executing bank, they have the right to decide in a different way the issue of making the payments in question. For example, they can be debited by the executing bank from the correspondent account of the issuing bank opened with the executing bank without acceptance.

The current legislation does not contain a mechanism for implementing this provision. In particular, this raises the problem of determining the amount of remuneration of the executing bank. It can be solved, guided by paragraph 3 of article 424 of the Civil Code of the Russian Federation.

Clause 1, Art. 876 of the Civil Code of the Russian Federation obliges the executing bank, if the payment and (or) acceptance was not received by it, to notify the issuing bank indicating specific reasons.

When making settlements with payment requests and payment requests-orders, one of the copies of these settlement documents with a note of the executing bank on the fact and reasons for refusal of acceptance can be used as a notification. The executing bank must send the following notice:

a) in case of settlements by payment claims - if within three days it receives the payer's application for refusal of acceptance;

b) in case of settlements by payment requests-orders - if it does not receive from the payer within the same period a payment request-order, sealed and signed by authorized persons.

Payers, not their banks, are liable for unreasonable refusal. Banks do not consider disputes on the merits. The executing bank is only obliged to check whether the application for refusal to accept the payment request is correctly executed, including the presence in it of the grounds for refusal and the reference to the clause of the agreement between the payer and the recipient of funds by which this ground is established.

The issuing bank is obliged to immediately inform the client about non-receipt of payment and (or) acceptance and about the reasons for this and request instructions from him regarding further actions.

If such instructions are not received within the period established by banking rules, and in the absence of such instructions within a reasonable time, the executing bank has the right to return the documents to the issuing bank.

The current banking rules do not establish such a period, so we can only talk about a reasonable period.

Further instructions by the customer may concern, for example, protesting a bill of exchange or promissory note in non-payment or non-acceptance. It should be remembered that, as a general rule, a bank acting on the basis of a mandate (collection) endorsement is not required to protest a bill of exchange if this obligation is not expressly provided for by the collection order. Therefore, taking into account that the legislation establishes rather short terms for making a protest of a bill of non-payment, such instructions should be given to the bank simultaneously with the transfer of the bill for collection.

In practice, the question arose of how the comment rule is combined. articles with paragraph 2 of article 6.

The fact is that, in accordance with paragraph 2 of the comment. the executing bank has the right to return settlement documents to the recoverer only if it does not receive a response from him within a reasonable time. Meanwhile, the current Regulation on Settlements in the Russian Federation does not contain a mechanism for exercising this right. Therefore, in practice, commercial banks either do not send this notice at all, or send it in an arbitrary form, which is uneconomical. In any case, unexecuted executive documents are placed in file cabinet No. 2 and remain there indefinitely.

On the other hand, in accordance with paragraph 2 of Article 6 of the Law on Enforcement Proceedings, banks are obliged, within three days from the date of receipt of the executive document from the recoverer or bailiff, to fulfill the requirement contained in this document for the recovery of funds or to make a note about full or partial non-fulfillment of the specified requirements due to the lack of sufficient funds on the accounts of the debtor to satisfy the claims of the recoverer.

Although the Law on Enforcement Proceedings does not directly indicate the need to return the writ of execution to the recoverer after putting the indicated mark on it, such a conclusion seems to follow logically from paragraph 2 of Article 6 of the Law: it makes no sense to put a mark on the lack of funds precisely within three days, if it is not to be returned to the claimant.

It seems that in the absence of funds on the payer's account, the bank is obliged to place the executive document in file cabinet No. 2 and immediately (obviously, taking into account the deadlines established by Article 849 of the Civil Code) send a corresponding notification to the recoverer. Three days after receiving this executive document, the bank is obliged to make a note on it about the lack of funds in the account and place it again in file cabinet No. 2, waiting for a response from the issuing bank (collector). If a response is not received within a reasonable time, the bank acquires the right to return the executive document to the issuing bank (collector).

Payments by checks

Before the entry into force of Part 13 of the Civil Code, settlements by checks were regulated mainly by the Regulations on Checks, approved. by resolution of the Supreme Council of the Russian Federation of February 1992, 49. [4] According to the Introductory Law (Part 2 of Article 1931), the Regulation on checks has lost force. The Civil Code of the Russian Federation, regulating settlements by checks in detail, sets the task of bringing Russian legislation closer to the provisions of the Uniform Law on Checks adopted by the Geneva Convention of 50. [XNUMX]

The norms of the Civil Code of the Russian Federation, which establish the procedure and conditions for settlements by checks, may be supplemented by other laws and banking rules established in accordance with them.

To the extent that does not contradict the Civil Code of the Russian Federation, the Rules for settlements by checks on the territory of the Russian Federation, approved. by letter of the Central Bank of Russia dated January 20, 1993 No. 18-11/52. [51]

The unconditional nature of payment by check means the independence of this obligation from the conditions and validity of the transaction in pursuance of which the check was issued. The invalidity of the transaction is not grounds for refusing to pay by check.

A check holder can be any natural or legal person. The payer of the check is only the bank in which the drawer has an account and which issued him a checkbook.

A check is not a means of payment. Its issuance does not mean making a payment, but only indicates the replacement of the previous relationship with a new one, which arises between the drawer, the holder of the check and other persons liable for the check. The obligation of the debtor under the obligation for which the check was issued (for example, the obligation of the buyer to pay for the goods) ceases only after the payment is made on the check.

The check is a security and must contain the mandatory details established by the Civil Code, the absence of which deprives it of legal force. The presence of additional conditions in the check does not affect its validity.

The form of the check on the territory of the Russian Federation currently must comply with the requirements of the resolution of the Presidium of the Supreme Council of the Russian Federation of January 13, 1992 “On the introduction of a new type of checks into economic circulation.” [52] The procedure for filling out a check is established by the Rules for settlements by checks on the territory of the Russian Federation.

The payer bank issues the amount indicated in the check to the holder of the check at the expense of the funds on the account of the drawer, or at the expense of funds deposited by him on a separate account, but not more than the amount that the bank guaranteed in agreement with the drawer.

In the event of a temporary lack of funds on the drawer's account, the bank, in agreement with the drawer, may pay the check at its own expense. The holder of the check and the payer are not bound by any obligations. The obligation to pay a check follows from the bank account agreement concluded by the drawer with the paying bank.

The term for payment of sums under a check, in contrast to the payment of a bill of exchange, is established by law. Prior to the entry into force of part two of the Civil Code, this period was regulated by Article 21 of the Regulations on Checks, which corresponded to the Uniform Law on Checks. The Civil Code does not set a specific deadline for paying a check. The rules for paying by checks in the territory of the Russian Federation provide that a check is presented for payment within 10 days from the date of issue. It seems that in cases where a check is issued outside of Russia, it must be presented for payment within the following terms: within 20 days - issued on the territory of the CIS countries, and within 70 days - issued on the territory of any other state.

The payer is obliged to verify the authenticity of the check and the authority of the check holder by verifying the data and signature of the drawer, his account number with the relevant information indicated in the check card.

When paying a check presented to the bank for collection, the payer is obliged to check the correctness of the endorsements (their continuity, the absence of an endorsement made by the payer). The payer is not obliged to verify the authenticity of the signature of the endorsers.

Losses resulting from the payment of a check that does not meet the established requirements, or contains information that does not correspond to the check card data, shall be borne by the paying bank. In all cases where the bank's fault in paying a check presented by an unscrupulous purchaser is not proven, the drawer bears the losses.

The norms of this article, with a few exceptions (a personal check is not transferable, an endorsement made by the payer is invalid, an endorsement to the payer in a transferable check means a receipt for payment), establish the rules for the transfer of rights on a check that correspond to the general provisions on the transfer of rights on a valuable paper (Article 146 of the Civil Code of the Russian Federation).

The endorsement must be written on the back of the check or on a sheet attached to it, contain the signature of the endorser and the date of the endorsement.

Order checks may be transmitted by endorsement. An endorsement may be nominal if it indicates the person to whom the check is transferred, and blank if such a person is not indicated. Transfer of a check by endorsement may be made to any person. The number of endorsements is not limited.

The previously existing Regulations on Checks provided for a personal endorsement that contained a “not to order” clause, which precluded further transfer of the check. The Civil Code does not provide for such an endorsement.

In accordance with paragraph 3, paragraph 3, Article 146 of the Civil Code of the Russian Federation, the endorsement on a check can be a guarantee. Thus, a personal endorsement on an order check may contain the words “currency receivable”, “for collection”, “as trustee”, which means an order to receive payment on the check, to perform actions necessary to protect and exercise the rights under the check (for example, to provide a check notary to file a protest).

An endorsement cannot be conditioned by any circumstance. Any condition limiting it is null and void. The endorser shall be liable for the payment of the check jointly with the issuer of the check, the guarantors, and other endorsers.

The content of a check aval is a guarantee (guarantee) of payment by check. However, the norms of the Civil Code of the Russian Federation on the guarantee to check aval are not applicable.

Securities may be regulated by the general norms of civil law only in cases expressly established by law. From these positions, it seems more correct to regulate settlements by checks by a special law.

The Civil Code of the Russian Federation, differently than the Regulations on checks, establishes the responsibility of a check avalist. The responsibility of the avalist is determined by the responsibility of the person for whom the guarantee is given. A guarantee of payment on a check may be given for the drawer or the endorser. The avalist is released from liability only if non-compliance with the form (for example, the absence of any of the required details) deprives the document of the validity of the check. The invalidity of the obligation arising from the cheque, on other grounds (other than a defect in form) does not exclude the liability of the availer.

Presentation of a check for payment may be carried out through the bank with which the holder of the check has entered into a bank account agreement. The bank of the check holder collects the check, i.e., presents it for payment to the paying bank, and, if necessary, makes a protest of the unpaid check (Article 883 of the Civil Code of the Russian Federation).

In the event that the payer is a bank with which the bank of the check holder has no correspondent relations, the check is handed over to the cash settlement center (RCC) of the Central Bank of the Russian Federation to receive payment. The payer bank writes off funds from the drawer's account on the basis of the register of checks received from the cash register.

Branches of the same bank make settlements on paid checks directly with each other, bypassing the cash register.

Unlike a bill of exchange, a refusal to pay a check can be certified not only by a notary's protest, but also by a corresponding mark of the payer or the collecting bank.

The protest is made by presenting an unpaid check to the notary's office at the location of the payer.

The procedure for protesting a check, as well as protesting a bill, is regulated by the Instruction on the procedure for performing notarial acts by state notary offices of the RSFSR, approved. by order of the Ministry of Justice of the RSFSR of January 6, 1987 N 01 / 16-01.

The notary is obliged to present the check to the payer. If he refuses to pay, the notary draws up a protest act in the prescribed form. An entry is made about him in the register, as well as a note about the protest - on the check.

In case of refusal to pay on a check, the holder of a check has the right to bring claims against each or all of the obligated persons (drawer, endorsers and availers). These persons must be promptly notified of the refusal of the payer.

The Civil Code of the Russian Federation establishes a different liability for an unpaid check than the Uniform Law on Checks. Regardless of who is the holder of the check, he has the right to receive:

1) the amount indicated in the check;

2) the amount of costs associated with receiving payment by check;

3) interest on the amount of the check equal to the refinancing rate established by the Central Bank of the Russian Federation (Article 395 of the Civil Code of the Russian Federation).

The Civil Code of the Russian Federation provides for a reduced limitation period for filing a claim by a holder of a check and a recourse claim by persons liable under a check - six months from the date they have the right to claim.

Credit, investment and financial consulting

Credit consulting - provision of consulting services in the field of attracting credit and investment financing for legal entities and individuals.

The range of problems solved by consulting is quite wide. And the specialization of companies providing consulting services can be different: from a narrow one, limited to any one direction of consulting services (for example, audit), to the widest one, covering a full range of services in this area. Accordingly, each specialist (or each firm) working in this field, puts the concept of consulting in its own meaning and gives it its own shade, determined by the direction of a particular company.

Credit consulting is a new type of business that is actively spreading today. Considering the ever-increasing interest of our clients in funds attracted from outside for business development, an objective need arose for the development of such a type of service as credit counseling.

The offer of various loan programs by banks is also growing. Each of them not only offers the client special conditions, but also requires him to provide a completely specific set of documents and guarantees. It becomes increasingly difficult for a potential loan recipient to navigate this area on their own and it becomes increasingly easier to get lost in this flow.

Let's try to define consulting in the broadest sense of the word.

Consulting is a kind of intellectual activity, the main task of which is to analyze, substantiate the prospects for the development and use of scientific, technical, organizational and economic innovations, taking into account the subject area and client problems.

Consulting solves the issues of management, economic, financial, investment activities of organizations, strategic planning, optimization of the overall functioning of the company, doing business, research and forecasting sales markets, price movements, etc. In other words, consulting is any assistance provided by external consultants, in solving a particular problem.

The main goal of consulting is to improve the quality of management, increase the efficiency of the company as a whole and increase the individual productivity of each employee.

When do clients turn to a consulting company for help?

According to popular belief, the services of external consultants are used primarily and primarily by those organizations that find themselves in a critical situation. However, assistance in critical situations is by no means the main function of consulting. In what cases and who turns to a consulting company for help?

Firstly, in cases where an enterprise with a reliable status plans to restructure the entire system, associated either with expansion, or with a change in the form of ownership, or with a radical change in the spectrum of the enterprise's activities and reorientation to more promising and / or profitable business areas .

Secondly, in cases where an enterprise with a reliable status, in order to assert its position in the market and create the necessary image in the eyes of potential partners, turns to the services of a consultant (for example, an auditor), conducts an audit of its activities (for example, an audit) and then makes its results public.

Thirdly, in cases where the enterprise is in a critical situation (or even on the verge of collapse) and is not able to get out of this situation on its own due to lack of experience and internal resources for an adequate and timely response to the situation. The services of a consultant (consulting firm) in this case are in the nature of a crisis-consulting.

Professional consulting services have been provided in Russia for more than ten years. Despite such a long period, a clear understanding of why to invite consultants and whether they should be invited at all, among potential consumers of consulting services has not yet developed. The reason for this is largely an inadequate understanding of what consultants can and cannot do, when it makes sense to invite them, and what are the necessary conditions for successful cooperation with consultants.

According to Denis Aleksandrovich Shevchuk, the main task of consultants is to assist clients in solving their managerial problems.

They can solve this problem in several ways:

▪ Find a problem and suggest solutions. In a situation where the client realizes that he has a problem, but cannot determine what exactly it is, what its true causes are, consultants can analyze the situation and identify the problem and the reasons for its occurrence, as well as develop and offer the client ways to solve it . This is the so-called expert consulting, when consultants themselves do all the work to identify and solve the problem.

▪ Help the client find the problem himself and determine ways to solve it. There are situations when a client is ready to identify a problem and solve it, but lacks some methodological support to successfully implement his intentions. Then consultants can provide the client with this methodological support and go with him all the way from identifying a problem to solving it.

This approach is called process consulting, i.e. consulting in the course of the client's management activities.

▪ Teach the client how to find and solve problems. Creating a system of practical knowledge in the client, a mechanism that allows him from now on to find and solve his problems is the essence of the third approach, called educational consulting.

With this approach, the consultant does not participate directly in the process of finding and solving problems, but only trains the client and checks the correctness of the "homework".

In practice, all three approaches often intersect and complement each other. Emphasis shifts depending on what the client most needs: to find a solution to the problem for him, or to help him solve the problem, or to be taught how to solve it.

Determining the extent of this need, as well as the need to involve consultants in general, depends on a number of factors:

▪ Time. As a rule, any problem introduces its own time constraints. Depending on how much time is available to solve a particular problem, a choice is made in favor of one approach or another. Typically, expert consulting is the fastest way to solve a problem if the invited consultant has proven methods for solving such problems.

▪ Labor resources. Each problem requires labor resources spent on its solution. When the scale of the problem is large enough, it can be quite difficult to allocate people who will be exclusively focused on solving it, given that all of the client's full-time employees have their own day-to-day responsibilities as part of the ongoing business. At the same time, hiring and maintaining a special staff of specialists in case of every problem, as some companies sometimes prefer to do, is not economically feasible.

Consultants in this case are an additional workforce that is available when needed and removed when the need has passed.

▪ Money. Hiring consultants requires costs. Depending on what financial resources the client can allocate to solve the problem, one or another counseling approach is chosen. As a rule, training consulting is the cheapest way to solve problems if the client has the necessary labor resources and time to train them.

▪ Knowledge. The level of specialized knowledge is no less a critical factor than time or money. Of course, knowledge can be obtained through self-education.

However, the degree of consolidation of knowledge and the skills of their practical application will be different in this case. It is no coincidence that the effectiveness of full-time education is higher than that of distance learning. In addition, self-education is learning from your own mistakes, while by attracting consultants, you can learn from others.

▪ Objectivity. The consultant provides an independent, outside perspective on the client's problems. Due to his independence, he is free from cliches and prejudices that the client has developed over the years of his activity and which are often themselves sources of problems. The consultant may ask questions that the client himself does not think about because, due to established habits, he does not consider them questions. Finally, the consultant is a disinterested person in the sense that his only interest is the most effective solution to the client's real problems and he has no interests of his own within those problems.

It should also be noted what a consultant cannot or should not do for a client and why they should not be invited (on the example of INTERFINANCE, www.denisshevchuk.narod.ru, www.interfinance.ru):

▪ Decision making. The consultant, as a rule, cannot make decisions for the client. The client himself is responsible for his business, responsible to the owners, contractors, staff and himself, and he is the one to make the final decisions. The consultant only offers possible solutions, gives recommendations on the optimal solution, but does not make the decisions themselves.

▪ Playing with the law. The consultant cannot and under no circumstances should give the client recommendations that are contrary to current legislation. Any recommendation, the implementation of which brings the client into conflict with the law, is a threat to the client’s business and in itself creates a serious problem.

Thus, the consultant cannot and should not, by solving some problems of the client, create other, sometimes more serious problems for him - problems with the law.

▪ Participation in conflicts. The consultant cannot and should not participate in the client’s internal conflicts. An extremely unethical situation is when some people in the client’s management invite consultants in order to “overthrow” others. The consultant must always rise above personal or group conflicts, act as an independent arbiter, and seek solutions that are beneficial to the business as a whole, and not to individuals or groups of individuals.

▪ Formal results. The purpose of consulting assistance is to solve the client's problems, and not to write a consulting report. The task of a consultant should not be to create reports that are beautiful in form and empty in content, “candy wrappers” that are used to create the appearance of useful management activities. Therefore, you should not invite a consultant to write such a report, which will then be stored in a desk drawer and taken out from time to time for display - this is too expensive and an unjustified way to make an impression.

Based on the above, it is possible to formulate cases when it is necessary to invite consultants. Generally speaking, consultants should be called in when there is a managerial problem that the client wants to solve. However, the participation of a consultant is especially effective in the typical situations listed below:

▪ When the problem is complex, systemic in nature. If the scale of the problem is such that to solve it it is necessary to carry out radical comprehensive changes in the management system and business building principles, it is best to invite outside experts who will bring fresh ideas and provide the necessary labor resources. Solving complex problems usually requires significant labor and specialized knowledge.

▪ When the problem is of a one-time, situational nature. If a client is faced with a problem that is caused by a combination of specific circumstances and is not of a recurring, routine nature, and also requires a prompt solution, it is more effective not to create internal organizational capacity to solve it, but to carry out a one-time invitation to consultants. At the same time, inviting consultants to solve routine, everyday tasks, i.e., to carry out current management activities, is not effective.

▪ When there are differences in views on a problem and how to solve it within the client's management or between management and owners. In this situation, consultants are the optimal independent arbiter, capable of objectively assessing the problem and offering objectively justified ways to solve it.

▪ When solving a problem could have serious consequences, including strategic, financial or social ones. This is a situation similar to the previous one, with the only difference that in this case the cost of solving the problem and the associated responsibility are quite high. Therefore, the client's management may require independent expert support for identifying and solving the problem. Sometimes this is a way for the client to share responsibility with the consultant, not in terms of making a decision, but in terms of developing it.

There may be other situations when it is better to invite a consultant. The common criteria for all of them are:

▪ Presence of a problem;

▪ Lack of time or human resources to solve the problem;

▪ Lack of special knowledge to solve the problem;

▪ High price issue.

There is no need to say that the invited consultant must be a conscientious professional - this is a prerequisite. However, there are a number of fundamental factors that determine the success of the client's interaction with consultants:

▪ Correct selection of a consultant. No consultant can know everything. Some consultants are good for solving certain types of problems, others are good for others.

Therefore, the right selection of a consultant for a specific problem is extremely important. It should be borne in mind that a well-known name does not always guarantee the correct selection. There are many highly specialized and simply obscure consultants that the client may not know about until he encounters a problem that requires their participation. The main thing here is to evaluate the methodology and practical experience that the consultant offers to solve the client's problems.

▪ Communication. The consultant and the client must use a similar conceptual framework or, in other words, speak the same language. Otherwise, a situation may arise when the consultant, using his analytical tools, will be able to identify the problem and find ways to solve it, but the client may not understand the consultant’s recommendations. Therefore, it is necessary to agree in advance on the meaning of those concepts and terms used by both the client and the consultant.

▪ Level of training. Recommendations are effective only when implemented. But in order to use the consultant’s recommendations, the client sometimes needs to have an appropriate minimum level of training. Just as the implementation of even a detailed technological process requires a certain level of technical training, so the implementation of the most detailed management recommendations requires a certain level of management training. If such a problem arises, additional measures must be taken to ensure such preparation.

▪ Understanding goals and objectives. There are situations when the client is unclear about what exactly he wants, but he is determined to achieve it. This usually leads to the most serious problems in the client's interaction with the consultant. Therefore, it is necessary to jointly decide on goals and objectives, and only then start working.

Thus, the second part of the question formulated in the title of this article can be answered as follows: you need to study in any case - knowledge will never hurt, even if (one might say - especially if) consultants are invited.

The training itself, without the practical application of the acquired knowledge, is worth little. When was the last time any of the senior management of enterprises had the opportunity to attend a serious educational course? And how much of the knowledge they acquired is actually applied today in everyday management practice? When working with consultants - regardless of the mode of consultation - knowledge is directly embodied in practical activities, or, conversely, acquired in the process of solving specific problems.

In any case, the decision on the first part of the question - to invite or not to invite consultants - remains with the client. Consultants, as always, can only give the necessary recommendations, which was done in this article.

The service for obtaining financing from credit institutions is in demand among enterprises implementing investment projects, the cost of which significantly exceeds the cost of projects implemented previously, as well as in the absence of their own experience in bank lending (www.deniskredit.ru).

The implementation of such projects may include a work plan to increase the investment attractiveness of the enterprise as a Borrower.

A team of consultants, which includes diversified highly qualified specialists (financiers, lawyers, economists, marketers, etc.), can provide the client with a full range of services - from preparing a business plan to finding and identifying a financial source (bank, investment company, investment fund, private investors, etc.) in order to assist enterprises and organizations - potential borrowers - in preparing documents for obtaining a loan, choosing forms and methods of lending, searching for investors and arranging financing.

The consulting services and products offered by the Credit Agency (credit broker) are as close as possible to the requirements of investors - banks and other credit institutions and investment companies.

Actively cooperating with various banks, The credit agency offers clients the organization of financing - search and selection of banks for lending to investment projects, financing the development of production, its reorganization and technical re-equipment, as well as obtaining loans to replenish working capital.

As part of the Credit consulting service, we offer support for the procedure for obtaining a loan, namely:

▪ general familiarization with the lending market in Moscow

▪ provision of information and selection of the most optimal loan program and bank

▪ assistance in collecting and preparing a package of documents for obtaining a loan

▪ agreeing on a package of documents with the bank and submitting an application for a loan

By applying for a loan consultation, you will not only save precious time spent searching for a suitable program, but also receive the most reliable information about the bank and the conditions for obtaining a loan, which often differs significantly from that provided by the bank for advertising purposes.

Business lending, according to employees of the INTERFINANCE credit broker (INTERFINANCE MV LLC), despite the unstable state of the economy, implies the possibility of making decisions by some banks in a short time (from 1 to 10-15 days), before opening an account, accounting for management ( informal) reporting, group of companies. Crises are not a hindrance if you use the advice of professionals.

Despite the crisis in the Russian economy, most business lending experts agree that this banking sector in Russia will develop.

Let us consider in detail the currently existing business financing opportunities.

Legal entities:

All types of loans, including:

▪ overdraft (unsecured loan against turnover, up to 50% of average monthly receipts to the account from third-party counterparties, excluding payments to ourselves within a group of companies);

▪ loan to replenish working capital;

▪ loan for business development;

▪ loan for the purchase of a business;

▪ loan for the purchase of real estate (including commercial mortgage);

▪ loan for the purchase of equipment;

▪ loan to cover cash gaps;

▪ credit line;

▪ factoring;

▪ leasing;

▪ pawn business lending;

▪ bank guarantees.

▪ investments in Russian enterprises (including investments in new companies (up to a year) in Moscow).

Applying to credit brokers who have experience in full-time work in banks (preferably in senior positions in specialized divisions), allows you to conduct an express analysis of financial statements and potential creditworthiness, increase maximum lending limits (amounts), optimize taxation, increase credit attractiveness and speed up consideration applications, get the opportunity of priority preferential consideration of applications in banks.

For individual entrepreneurs:

▪ loan;

▪ credit line.

Adjustment coefficients (discount) applied in the framework of business lending programs (According to the Deputy General Director of INTERFINANCE (LLC "INTERFINANCE MV") Denis Aleksandrovich Shevchuk):

Real estate objects (buildings, structures, individual premises in a building, unfinished capital structure): no more than 0,8.

Equipment: no more than 0,7.

The subject of pledge may be office and computer equipment, as well as personal property of individuals. Pledge valuation of office and computer equipment, personal property is carried out by a loan officer on the basis of a visual inspection, study of documentation and information on the market value of similar objects and application of a correction factor of not more than 0,6 to the market value.

In the case of a pledge of equipment, trade pavilions (registered as temporary structures) may be considered along with technological, production, etc. equipment. Their collateral value is assessed by applying a correction factor of no more than 0,6 to the market value.

Vehicles: no more than 0,7.

Goods in circulation (goods, finished products, etc.): no more than 0,6.

For goods in circulation, as a rule, the purchase price of these goods by the pledgor without VAT (for purchased goods) / production cost of goods (for goods of own production) is taken as the market value. At the same time, the issue of the competitiveness of this price in the market must be studied by a loan officer.

Prior to accepting property as a pledge, a loan officer, when visiting the place of business, conducts an inspection and verification of the actual availability of property, compliance with data on the quantity and assortment (by type and generic characteristics), checks for the availability of documents confirming ownership. When pledging goods in circulation, certificates of conformity must be checked (selectively, but not less than 10 positions).

Loan amount = collateral amount * discount

The amount of collateral is the liquid market value (which can be sold quickly, usually slightly below the normal market value).

MINIMUM TERMS FOR CONSIDERATION OF APPLICATIONS: from 1-5 days to a month.

FLEXIBLE APPROACH TO COLOR: up to 1000000 rubles without collateral, loans with partial collateral. Any liquid property (including purchased equipment and real estate) is accepted as collateral for other loans. LARGE RANGE OF SUM.

BASIC REQUIREMENTS FOR THE BORROWER:

The presence of a stable and profitable business with a period of actual existence of at least 6 months is mandatory.

The term of official business registration is at least 6 months.

No negative credit history. Absence of facts of non-fulfillment of obligations.

BASIC REQUIREMENTS FOR A BUSINESS OWNER:

Citizenship of the Russian Federation.

Age - from 25 to 60 years old inclusive (for men under 28 years old, the issue is settled with the draft authorities).

No criminal record.

No negative credit history.

Representatives of business today have a sufficient choice among banks that are ready to give "money in growth" and support various business projects. Entrepreneurs only need to be well versed in the conditions and interest rates in order to choose the most beneficial loan program for themselves.

Entrepreneurs are often interested in the question: does the possibility of obtaining a loan depend on the legal form under which a small business is registered. For example, many are sure that there is a prejudice in banks regarding "individual entrepreneurs", it is much more difficult to get a loan with this form of ownership than, say, for a limited liability company (LLC).

However, this setting is far from reality: for banks that are seriously engaged in lending to small and medium-sized businesses, the legal status of the organization does not affect either the number of documents for obtaining a loan, or interest rates, or lending conditions, that is, to all representatives of this sector of the economy. activities are subject to the same requirements.

Some banks have restrictions on other parameters, such as the share of foreign capital, but the form of ownership of the company does not matter. However, there is a limitation for legal entities: the share of the state or non-residents in the authorized capital should not exceed 49%.

The documents that are required for obtaining a loan for small and medium-sized enterprises mainly relate to both the legal status and financial statements. In a bank, for example, you will be required to: a certificate of state registration, a certificate of registration with the tax authority, copies of passports of an individual entrepreneur and guarantors, a copy of the income statement for the last two reporting dates, copies of the pages of the book of income and expenses for 6 months , certificates of the presence or absence of loans in servicing banks.

It is also necessary to provide an extract from the servicing banks on account turnover (debit turnover or credit turnover) for the previous 12 months, as well as information on monthly turnover. Additional documents that banks are often asked to provide are directly related to the company's activities: copies of lease agreements for premises, copies of contracts with buyers and suppliers, copies of documents confirming the ownership of property offered as collateral (contracts, invoices, acts, payment documents, certificates property) and so on.

An individual approach to each legal entity can be explained by a huge number of variations in the parameters of small and medium-sized businesses in modern Russia. Everything is subject to the attention of credit analysts: from organizational and legal documents of the enterprise itself to lease agreements for premises and utility bills. If you divide the documents into groups, then you can select constituent documents, financial documents, documents confirming the ownership of property provided as security, as well as additional documents confirming the conduct of business. Terms of crediting enterprises in each bank are different.

Consideration of an application in banks takes from three working days to several weeks, subject to the provision of a complete package of documents, so enterprises wishing to receive a loan must take this fact into account in advance. Often, clients complain that banks take a long time to consider their applications, but from practice I can say that usually such clients do not follow the instructions of the bank and do not fulfill everything that is asked of them on time, thereby delaying the decision-making process on the possibility of lending.

Due to the focus of most banks on the "individual approach" to each borrower-representative of small or medium-sized businesses, entrepreneurs have the opportunity to vary the interest rate. You should think about obtaining a loan for your company in advance and cooperate as much as possible with credit analysts on issues related to documents: in this case, you can choose the most favorable lending conditions for the company.

Significant time savings, and often many other costs, will allow you to get a timely appeal to credit brokers, but only if in the staff of such a company all employees previously worked in banks in senior positions. The abundance of so-called "certified brokers" who listened to advertising lectures in ordinary companies, seriously discredits the profession of a credit broker. Ideally, the more banks a credit broker worked in, the better.

List of documents for the Borrower

1. Questionnaire - application in the form of the Bank.

2. Passport(1) for individuals who are:

▪ business owners;

▪ parties to the transaction (borrower, guarantors);

▪ managers (having the right of first signature) of legal entities included in the Client's group of companies.

For men under 28 years of age, an additional copy of the military ID.

3. Certificate of state registration(3) (making an entry in the Unified State Register of Legal Entities / EGRIP).

4. Certificate of registration with the tax authority(3)

5. Licenses(3) and/or other documents giving the right to carry out activities.

6. Constituent documents(3)(Articles and Memorandum). Additionally, if applicable: Decisions on making changes and/or additions to the constituent documents, as well as certificates of state registration of such changes and/or additions.

7. Documents confirming ownership(3) on the personal property of business owners.

Financial documents

1. Financial (tax) reporting(3) with a stamp, or a postal receipt and a description of the attachment, confirming the delivery to the IMTS, as of the last reporting date (for the last reporting period).

1.1.

Balance sheet (Form No. 1) and Gains and losses report (Form No. 2), or

1.2.

Single tax returnpaid in connection with the application of the simplified taxation system, as well as a receipt (payment order) confirming the payment of a single tax for the last period, or

1.3.

Tax declaration for single tax on imputed income for certain types of activities, as well as a receipt (payment order) confirming the payment of a single tax for the last period.

2. Income and expense ledger(3) organizations and/or individual entrepreneurs applying the simplified taxation system or being UTII payers for the last 3 months.

3. Accounting documents (statements) containing information on receipts to the cash desk and to settlement accounts broken down by banks for 6 months monthly.

4. Breakdown of receivables and payables(1) no later than the 1st day of the month in which the application was submitted.

6. Certificate of commitment(1) in the form of the Bank no later than on the 1st day of the month in which the application was submitted.

7. List of property used in business and inventory items(1) no later than the 1st day of the month in which the application was submitted.

Documents confirming economic activity

1. Contracts (agreements) with main suppliers and consumers(3). At least 6 (at least 3 with suppliers and at least 3 with consumers) with the largest counterparties in terms of settlements.

2. Documents confirming the right to use the premises(3)(warehouse, office, points of sale).

Forms of submission of documents:

(1) Original

(3) A copy certified by the organization / individual entrepreneur

The responsible officer of the Bank may additionally request other additional documents necessary for making a decision on granting a loan.

A business financing option is a loan secured by housing for any purpose, essentially a mortgage option. Quite often, business owners use this product. There are two options: mortgage of an apartment and mortgage of a house (cottage).

The residential building that is the subject of pledge must meet the following requirements:

1.1. be located in a settlement on the territory of which other residential buildings suitable for habitation are located;

1.2. have an access road that provides year-round access to the land plot on which the residential building is located, by motor transport;

1.3. be suitable for permanent habitation;

1.4. have a constant power supply from an external source through the connected network from the power supply organization;

1.5. be provided with a gas, steam or stove heating system, as well as cold water supply;

1.6. be in proper technical condition and not have significant defects in structural elements and engineering equipment, which can subsequently lead to an accident at home;

1.7. pass the cadastral registration, comply with the floor plan issued by the body carrying out the technical inventory of the property, which is determined on the basis of the data of the valuation report made by a professional appraiser;

The land plot that is the subject of pledge must meet the following requirements:

▪ have a permitted use (intended purpose): for gardening, housing or summer cottage construction;

▪ requirements specified in clauses 1.1., 1.2. and 1.9.

General requirements. The subject of collateral can be both the Residential Premises, for the purchase of which a mortgage loan was provided, and the existing Residential Premises.

1. The Residential Premises should not be under arrest or prohibition, should not be encumbered with the right of third parties, with the exception of the right of residence, there should be no disputes regarding the Residential Premises. If a person who is not one of the owners (pledgers) of the mortgaged Residential Premises plans to be the sole borrower under the loan agreement, then it is necessary to demand that one of the owners (pledgers) of the Residential Premises be involved as the second borrower (co-borrower).

2. The dwelling is a separate apartment or a separate Residential building for permanent residence (cottage or semi-detached house (townhouse)). The rooms of a communal apartment can only be pledged if, to secure one loan, all rooms (premises) of the communal apartment are pledged, i.e., in aggregate, the pledged rooms (premises) will constitute a single Residential Premises.

3. The Residential Premises is connected to electric, steam or gas heating systems that provide heat to the entire area of ​​the Residential Premises, or has an autonomous life support system.

4. The dwelling has entrance doors, windows and a roof (for apartments on the upper floors).

5. When granting a loan secured by existing housing, Residential Premises shall not be accepted as collateral in the following cases:

· When the owners (one of the owners) of the Premises are minor children;

· When persons who are not members of the pledger's family are registered in the Residential Premises for a long period (1 year or more).

6. When one of the owners (pledgers) of the Residential Premises is a person over 65 years of age, the mortgage agreement is subject to mandatory notarization.

7. The building in which the subject of pledge is located must meet the following conditions and requirements:

a) is located in Moscow or the Moscow Region;

b) is not in emergency condition;

c) not be registered for major repairs (if information is available);

d) is not in plans for reconstruction or demolition (if information is available);

e) have a reinforced concrete, stone or brick foundation;

f) depreciation of a building built earlier than 1970 should not be more than 70%.

8. Ownership of the Residential Premises must be confirmed by the relevant title documents (certificate of ownership, registered contract of sale of the Residential Premises, barter agreement, etc.), drawn up in accordance with the requirements of the current legislation.

9. Technical documentation (explication, floor plan) must comply with the data specified in the USRR. If the Residential Premises is re-equipped without an appropriate permit, such Premises can be accepted as a pledge only on the condition that the Pledgor legalizes the redevelopment within 6 months from the date of the conclusion of the mortgage agreement (the emergence of a mortgage by virtue of law), and if it is impossible to legalize the redevelopment, the Pledgor is obliged, within 9 months from the date of conclusion of the mortgage agreement (the emergence of a mortgage by virtue of law), to bring the Residential Premises into a state corresponding to the data specified in the technical documentation.

10. When acquiring (mortgaging) a separate Residential House, the land plot located under such a house is simultaneously acquired, registered in a mortgage. Ownership of a land plot must be confirmed by the relevant title documents (certificate of ownership, registered land purchase and sale agreement, other agreement), drawn up in accordance with the requirements of the current legislation. The original cadastral plan of the land plot must be attached to the document for the land, which must be pledged together with the Residential Building.

10.1. If the land plot is provided on a leasehold basis, then simultaneously with the house, the leasehold rights to the land plot must also be pledged. The lease agreement for a land plot must be concluded for a period not less than the term of the loan agreement, or contain an indication of the extension of the agreement for a new term. If the lease agreement contains a condition on obtaining the consent of the lessor to pledge the rights to lease the land plot, then such consent must be obtained before the conclusion of the pledge agreement, if such a requirement to obtain the consent of the lessor does not contradict the current legislation.

10.2. If the mortgagor does not have the right of ownership or the right to lease the land plot located under the Residential Building, then when lending against the security of the existing housing, such property is not accepted as security.

When lending secured by purchased housing, the Residential House can be accepted as security, provided that the seller of the Residential House has the right to lease the land plot located under the Residential House (Shevchuk D.A. Buying a house and a land plot: step by step - M.: AST: Astrel, 2008).

The crisis in the American mortgage market provoked a global crisis in the money market. Many Russian banks found themselves in a difficult position. The lack of financial resources and their widespread rise in prices have led to insufficient funding. As a result, the financial resources of a number of banks allocated for the issuance of mortgage loans were exhausted.

Due to the inability to quickly replenish their potential, many banks hastily tightened lending conditions for mortgage transactions, and some even temporarily abandoned mortgages. A frequent occurrence in today's practice of banks is the delay in the consideration of an application for a loan without explaining the reasons. At the same time, many borrowers who had already received bank approval for issuing a loan were faced with the fact of raising the mortgage rate (Shevchuk D.A. Mortgage: just about complicated. - M .: GrossMedia: ROSBUH, 2008).

Not only the banks themselves faced problems, but also potential borrowers who were forced to abandon real estate purchase transactions due to sudden bank failures and delays in issuing loans.

It is not uncommon for borrowers who have received approval to wait for their money for two or three or more months. In the context of rising real estate prices, a delay of several months leads to a significant increase in the cost of an apartment (Shevchuk D.A. An apartment on credit without problems. - M .: AST: Astrel, 2008).

Banks, which were less focused on foreign borrowing, relying on their own resources when issuing mortgage loans, continue the process of lending to mortgage borrowers. In general, a sufficient number of banks still offer very competitive conditions, but they raised mortgage rates, significantly increased the down payment and tightened lending conditions (Shevchuk D.A. Loans to individuals. - M .: AST: Astrel, 2008).

A loan broker is essentially a financial lawyer. You can go to court yourself - or you can hire a lawyer, you can get a haircut at home at the mirror yourself - or you can go to a specialist’s hairdresser, someone repairs his Cossack himself - and someone gives his Mercedes to a car service. It is a mistake to think that a loan broker is a magician and distributes loans to everyone. If he is a specialist, has a specialized higher education (and not just courses) and experience of real full-time work in banks (preferably in different and relevant departments in senior positions, and not just internships), then he will significantly increase the likelihood of a positive loan decision (so how a competent lawyer will increase your chances in court and in the preparation of legal documents) and the speed of decision making.

I can add that during a crisis it is useful to spend your free time on self-education, studying economic and legal literature. Bank employees have a habit of getting angry if loan applicants are illiterate in economic and legal matters. A broad outlook allows you to find a common language with bankers faster, because banking has long been considered one of the most highly intelligent professions, some employees have 2-3 higher educations and constantly improve their knowledge.

There are many scammers, who, as a rule, do not have even a minimum experience in banks before, offering a guarantee of 100% obtaining a loan: this is a 100% fraud or an outright crime that will be XNUMX% revealed sooner or later (with corresponding consequences for both the client and the false assistant) . This is clear to any experienced banker. In any bank, business loans and mortgages (and often other types of loans) are issued after the decision of the credit committee, this is a collegiate body, while the client is previously checked by various bank services. One person, even a big boss (unless, of course, this is the owner of the bank) cannot, by definition, make such decisions alone, especially an intermediary. A competent intermediary with full-time experience in banks can significantly increase the likelihood of approval - this is already a reality, but will never guarantee a XNUMX% loan. Its role is educational and lobbying. Credit brokerage is useful to everyone. On the one hand, the broker simplifies the procedure for obtaining a loan for clients, on the other hand, it attracts new "quality" clients to banks.

A loan broker is essentially a financial lawyer. You can go to court yourself - or you can hire a lawyer, you can get a haircut at home at the mirror yourself - or you can go to a specialist’s hairdresser, someone repairs his Cossack himself - and someone gives his Mercedes to a car service. It is a mistake to think that a loan broker is a magician and distributes loans to everyone. If he is a specialist, has a specialized higher education (and not just courses) and experience of real full-time work in banks (preferably in different and relevant departments in senior positions, and not just internships), then he will significantly increase the likelihood of a positive loan decision (so how a competent lawyer will increase your chances in court and in the preparation of legal documents) and the speed of decision making. Discounts for buyers of our books (buy any book listed on the site and get a discount of 5 to 10%). Free phone consultations. At the same time, the client often receives benefits from the bank compared to the client from the street, this is easily explained - we reduce the costs of the bank's client service.

Cooperating with us, you get access to the best offers on the Russian credit market. We work with banks that actually lend, and not just declare.

Our employees have experience in banking in senior positions (including top management, board), economic and legal education, authors of books and articles on economic and legal topics in leading publications. This sets us apart from our competitors. Trust your business to professionals! Many of our competitors do not have experienced bank employees, especially those with managerial experience in specialized departments, but they undertake to advise, and at higher prices, make gross mistakes in documents, work on a stream (maybe someone will get a loan)! In our opinion, a loan broker must have experience in accepting and promoting loan applications (both legal entities and individuals) in banks (and not just know their names and have business cards of "familiar" bankers, some bankers distribute hundreds of business cards) and know all the technologies from within, as well as higher economic and legal education (our employees have 2-3 specialized higher educations).

The duration of the work depends on the type of activity of your company and the requested loan amount. Non-standard cases are discussed individually.

We accept offers from banks, partners and investors, realtors and fellow brokers. We are constantly expanding the list of credit products.

What is the reason for success?

Firstly, in the high professional level of the company's employees.

Secondly, in the provision of high-quality services in the shortest possible time.

Thirdly, in an individual approach to each client and guarantees of the quality of the services provided.

Fourthly, in the reliability of the company, compliance with business ethics and confidentiality.

The presence of a stable and profitable business with a period of actual existence of at least 6 months is mandatory for all programs for legal entities and individual entrepreneurs.

Significant time savings, and often many other costs, will allow you to get a timely appeal to credit brokers, but only if in the staff of such a company all employees previously worked in banks in senior positions. The abundance of so-called "certified brokers" who listened to advertising lectures in ordinary companies, seriously discredits the profession of a credit broker. Ideally, the more banks a credit broker worked in, the better.

Credit brokerage is useful to everyone. On the one hand, the broker simplifies the procedure for obtaining a loan for clients, on the other hand, it attracts new "quality" clients to banks. For banks, cooperation with credit brokers is interesting because they expand their client base, getting less "problem" borrowers as a result. Credit brokers begin to work with a client only after they are convinced that they can really help him. If the borrower is unpromising, the broker will not even take him to the bank. When working with brokers, banks reduce the cost of advertising and marketing services - brokers themselves bring clients to them. In some banks, for clients brought by a broker, discounts on interest rates are provided. In the West, lending to small businesses is an assembly line that operates according to standard rules and procedures. It is this principle that makes it possible to form a large loan portfolio from small loans. Our market is just getting there. The development of this service can lead to a sharp increase in the number of successfully received loans by entrepreneurs and an increase in the literacy of borrowers. Credit consulting came to Russia from the West, where today this market is a powerful and highly developed industry: with the help of credit brokers, the population and small businesses receive up to 60-75% of loans. In Russia, the share of brokers in attracting loans is about 1-2%. However, they appeared relatively recently - in the early 2000s. At the same time, the formation of the credit brokerage market took place against the backdrop of distrust of brokers by potential borrowers themselves and bankers.

Small businesses often have to go through hell to get a loan. Many businessmen do not have enough experience and qualifications to competently "package" and "sell" their business plan to loan officers. Entrepreneurs often bring a bunch of completely unnecessary documents, but they forget one and only certificate, without which the bank will not work with the borrower. As a result, going to the banks can be very long. Equally important is the quality of the documents. A business plan written on the knee, a school notebook with real reporting, an intricate ownership structure do not simplify the procedure for issuing loans. Many entrepreneurs still come to the bank with just such a set. Another problem is the ignorance of businessmen about the requirements of banks, which require confirmation of the borrower's solvency. And for this you need to describe your business as clearly, in detail and in a form understandable for bankers, show the ownership structure, draw up a competent business plan, from which the loan officer will understand where the money received will go and how soon they will "beat off". As a result, it turns out to be insulting: an entrepreneur, according to the real indicators of his business, could have received a loan, but the bank refused, as the businessman was unable to correctly present his business and prove the effectiveness of the use of borrowed funds.

Banks are formal structures, they work with documents, pay great attention to design, and for them every comma matters. For entrepreneurs, documents are not the main thing in business, and they never think about commas. It turns out that for some, the form is primarily important, and for others, the content. Credit brokers here act as “packers” who help, with experienced advice, to put the contents into a form acceptable to banks. Why are few loans issued in the country? Not at all because there is no money. The banks have money, and a lot of it. It all comes down to the slowness of the distribution system. Bank credit specialists work in a matrix, the boundaries of which they do not want or cannot go beyond. When a client comes to them, they “scan” him, and if he does not meet at least one point, then he no longer fits into the matrix. This means that the loan will be denied. The current situation resembles a closed dam, when in the upper part the water is already overflowing and flooding cities and villages (banking liquidity), and at the other end of the dam there are gates (credit committees of banks) that drain water (money) in a strictly limited manner due to instructions, preventing the release of excess liquidity into the real sector.

The task of credit brokers is to drill holes in this dam, open the gates and download the surplus money to the real sector of the economy - that is, businessmen and consumers. There are many scammers, who, as a rule, do not have even a minimum experience in banks before, offering a guarantee of 100% obtaining a loan: this is a 100% fraud or an outright crime that will be XNUMX% revealed sooner or later (with corresponding consequences for both the client and the false assistant) . This is clear to any experienced banker. In any bank, business loans and mortgages (and often other types of loans) are issued after the decision of the credit committee, this is a collegiate body, while the client is previously checked by various bank services. One person, even a big boss (unless, of course, this is the owner of the bank) cannot, by definition, make such decisions alone, especially an intermediary. A competent intermediary with full-time experience in banks can significantly increase the likelihood of approval - this is already a reality, but will never guarantee a XNUMX% loan. Its role is educational and lobbying.

The mechanism of work of credit brokers is relatively simple. A client who wants to get a loan comes to the company, the consultant finds out various details and subtleties of his business and selects the ideal loan product in a particular bank. But the client must be absolutely honest, tell everything without concealment, otherwise it will be extremely difficult for the broker to work with him.

However, everything here is just at first glance. There are several types of players in the market. The first are semi-legal or downright black brokers who, using their connections and not disdaining bribery, simply take the client by the hand, lead him to their banker acquaintance and disappear, they can engage in obvious falsification, a damaged credit history is the lightest punishment.

Professional market participants call such “brokers” swindlers and predict their imminent departure; people discredit the entire institution of credit brokers, but with the formation of a civilized market they will disappear. The second type of brokers are exclusively intermediaries; they process the information provided by the borrower and indicate to him a bank that can issue a loan on acceptable terms. The third group of players - consultants - approach the client more thoroughly. After applying, the broker analyzes the borrower’s condition, understands the company’s ownership structure, identifies positive and negative factors, and evaluates the weight of each of them. After this, he selects a bank that can satisfy the client’s needs on the most favorable terms, helps the borrower collect the necessary documents, and checks them before submitting them to the bank. At the same time, sometimes a client fails to get a loan, but not because everything is completely bad for him, but only because he was not careful enough about the documentation. The broker can point out the shortcomings to the client, advise how to correct them, and after eliminating the flaws, take him to the bank, tell the client which bank to choose, discuss with him the model (terms, collateral) and the goals of raising a loan.

Author: Shevchuk D.A.

<< Back: 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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