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Lecture notes, cheat sheets
Banking law. Lecture notes: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
Abbreviations KB - commercial bank, commercial banks Central Bank (BR, CBR) - Central Bank (Bank of Russia) c. b., c / b - securities, security y. l. - legal entity, legal entities f. l. - individual, individuals r / s - settlement account t / s - current account c / s - correspondent account e. b. - should be m. b. - maybe (may be) UK - authorized capital SK - equity RCC - cash settlement center JSC - joint stock company RZB - securities market A - asset P - liability s / n - wages GK - civil code FZ - federal law n/a - regulations, regulations KO - a credit institution, credit institutions since - since Art. - article LLC - Limited Liability Company BNA (USSR, RSFSR, RF) - Bulletin of normative acts of ministries and departments (Bulletin of normative acts of federal executive bodies) Bulletin of the Supreme Court (USSR, RSFSR, RF) - Bulletin of the Supreme Court Vedomosti (USSR, RSFSR, RF) - Vedomosti of the Supreme Soviet (USSR, RSFSR), Vedomosti of the Congress of People's Deputies and the Supreme Soviet (USSR, RSFSR, RF) Bulletin of the Supreme Arbitration Court of the Russian Federation - Bulletin of the Supreme Arbitration Court of the Russian Federation RV - "Russian News" RG - "Rossiyskaya Gazeta" SA RF - Collection of acts of the President and Government of the Russian Federation SZ RF - Collection of Legislation of the Russian Federation SP (USSR, RSFSR, RF) - Collection of Resolutions of the Council of Ministers (Government) Topic 1. CONCEPT AND SYSTEM OF BANKING LAW Reading is the best teaching! Nothing can replace a book. The concept of banking law The question of whether banking law is an independent branch of law can be resolved using the theory of law. In accordance with it, any independent branch of law has its own subject and method of legal regulation. Banking law is a branch of law that regulates the activities of banks and other credit organizations. By "banking law" is meant: ▪ firstly, the branch of law; ▪ secondly, science that studies the patterns of construction and functioning of the banking system, legal norms governing banking relations and the practice of their application; ▪ thirdly, an academic discipline that is taught in higher educational institutions. In Soviet science, banking law was considered as part of financial law, being considered its special sub-branch. The tradition of considering banking law as a sub-branch of financial law has been preserved to this day. Banking topics are considered in textbooks on financial law, starting with the topic "Legal status of banks" and ending with the topics "Settlement legal relations", "Securities. On the other hand, banking law is part of civil law. Many issues are regulated precisely by the norms of civil law. It can be said that banking law has its own subject of legal regulation - social relations that arise in the field of interaction between banking and other credit organizations. Banking law regulates, firstly, the banking system, headed by the Bank of Russia, and, secondly, banking activities. Accordingly, the banking system, banking activities and banking relations are the subject of legal regulation for banking law. The method of legal regulation in the theory of law is usually understood as a set of methods and means of legal regulation, which are due to the laws of the subject of legal regulation and are applied in a particular branch of law. There are three essential elements that make up the method of legal regulation: a) the grounds for the emergence of rights and obligations and the nature of their relationship; b) the method of forming the content of rights and obligations; c) the nature of the sanctions, as well as the methods and procedures for their application; It can be said about the sanctions of banking law that they create the most characteristic difference between banking law and all other branches of law. Banking law uses such methods as imperative and dispositive. The relations of power and subordination are regulated by the imperative or administrative-legal method. This method assumes that one of the parties to the legal relationship has the right to give mandatory orders to the other party. This method is used, for example, in relations between the Central Bank and other elements of the banking system. The Bank of Russia is vested with power by law, and its orders and individual orders are subject to unconditional execution by all credit institutions. After all, legal entities, being constituted as banks, voluntarily joined the system of monetary power, which is represented by the banking system headed by the Bank of Russia. The Bank of Russia is the regulator and supervisory institution of this system, and its power extends only to those entities (credit institutions) that, by law, become subjects of the banking system, in contrast to state power, which extends to all entities in society. The second method, dispositive or civil law, implies equality for the participants in legal relations and the opportunity to choose a variant of behavior at their own discretion, depending on specific circumstances. This method regulates, mainly, the relationship between commercial banks and their clients. It is necessary to see the differences between civil and banking law in order to correctly determine the limits of the competence and functions of the Bank of Russia in resolving issues of licensing, supervision, etc. Thus, we can conclude that banking law does not have its own method of legal regulation. Banking law refers to the so-called complex branches of law, which combine elements of several other branches. The essence of banking law The essence of banking law lies in the fact that it regulates banking relations. These relationships arise, change and terminate in connection with the implementation of banking activities. The essence of law is manifested in its regulatory and protective functions. They can be considered as the main areas of influence of law on social relations. In the sphere of private relations, regulation is of the most general nature. There is no vertical structure here, no hierarchy built on the basis of public authority. A classic example of such relations is civil law relations. Another thing is when it comes to public law relations. These are relations that are, as it were, constructed by the state. Private relations are the sphere of relations where the subjects (in this case, the subjects of monetary relations) themselves determine their rights and obligations within the framework of the law. Take, for example, a bank account agreement. There are two sides here - the bank and the client. Everything is decided by the agreement of interests and will of the parties. The Central Bank should not interfere in these relations, prescribe something to the parties in their contractual relations. This is the area, as noted above, of civil, not banking law. Civil law is dispositive - the parties themselves determine their rights and obligations within the framework of civil law. In these relations, the parties are equal to each other. Such equality means the absence of administrative or other managerial power of one party in relation to the other. Only economic, monetary power, regulated by the parties, can be present here. The government does not interfere in these specific monetary relations. It's like a horizontal relationship. At the same time, the bank is entrusted with certain obligations to conduct banking operations in accordance with the rules established by law and regulations of the Bank of Russia. Corresponding to these duties are the rights of the Bank of Russia to demand the fulfillment of these duties. There is power in these relationships. Therefore, such relationships can be schematically represented as vertical. banking law system The question of the system of banking law is of theoretical and practical importance. The theoretical significance of this issue lies in the fact that the study of the system of banking law allows you to better understand the meaning of the regulation of certain banking operations and transactions, interpret the meaning of the rules, and also distinguish between banking law and other branches of law that regulate banking. The general concepts of the system of law, sub-branch, legal institution, rules of law, developed in the theory of law and the state, are quite applicable in banking law. The system of banking law includes three levels: a) sub-branches of banking law; b) legal institutions (sectoral and intersectoral); c) norms of banking law. An example of a sub-sector is currency law to the extent that it is regulated by the relevant banking laws and regulations of the Bank of Russia. The institution of banking law is a set of legal norms that regulate interconnected banking relations of a certain type. Banking law consists of such institutions as, for example, the banking system, the legal status of a credit institution, the legal status of the Bank of Russia, prudential regulation, prudential supervision, legal regulation of accounting in a credit institution, opening and maintaining a bank account, settlements, cash transactions, foreign exchange transactions , currency control, operations on bank deposits, operations on loans, operations with precious metals and some others. Features of the norms of banking law The norms of banking law are a kind of legal norms. They have all the features that are characteristic of any legal norm. Law consists of legal norms, therefore all signs of law are at the same time signs of a legal norm. Signs that are inherent in the rule of law as a single legal phenomenon: a) the rule of law - an abstract rule of conduct; b) the requirements of the legal norm are addressed to personally unidentified persons (to any banker, to any creditor, to any depositor, etc.); c) the rule of law is designed for repeated application; d) the rule of law has a grant-binding character (provides for the rights and obligations of the subjects of legal relations). If, in view of the foregoing, we analyze the specifics of the norms of banking law, we can note the following. Banking relations are regulated not only by the norms of banking law proper, but also by the norms that are systemically related to banking law - constitutional, civil, administrative, financial and tax law. For example, the norms of constitutional law that govern the procedure for appointing the Chairman of the Bank of Russia and the Board of Directors are both the norms of both constitutional and banking law. Another example of Art. 140 of the Civil Code of the Russian Federation. It establishes the basis of the monetary system - the monetary unit as a legal tender. This norm, being a norm of civil law, is at the same time a norm of banking law. So, we can conclude that the norm of banking law has the following main features: ▪ formally defined nature of the banking rule (contained in the regulatory act); ▪ provides for the rights and obligations of subjects of banking relations; ▪ provided with the possibility of applying sanctions; ▪ establishes the legal status of subjects of banking relations and provides for certain options for their behavior; ▪ volitional content; ▪ rule of conduct; ▪ consolidates typical banking relationships; ▪ addressed to a personally indefinite range of subjects of banking legal relations; ▪ designed for repeated use. Banking law can be classified on various grounds. According to the way the rule of conduct is formulated, all norms are divided into authorizing, obliging, restricting and prohibiting. According to the functions of law, the rules of law can be divided into two groups: regulatory and protective. Both types of norms are applied in different proportions in banking law, depending on the nature and type of banking activity. By appointment, the norms of banking law are divided into general and prudential. The general norms of banking law fix the legal status of the banking system, the legal status, organizational and legal forms and the procedure for creating credit institutions, their banking activities. The same norms regulate the banking system, the legal status of a credit institution, the goals, legal status, structure and functions of the Bank of Russia, the procedure for organizing and exercising banking supervision, and the procedure for conducting banking operations. Prudential norms of banking law provide for various financial and organizational measures, the implementation of which leads to a reduction in banking risks. Prudential standards are all those standards and mandatory requirements that are established by law and the Bank of Russia for credit institutions in order to ensure reliability, liquidity and solvency, manage banking risks, and protect the interests of shareholders and depositors. Instruction of the Bank of Russia dated March 31, 1997 No. 59 “On the application of enforcement measures to credit institutions for violations of prudential norms of activity” [1] states: “Prudent norms of activity are understood as established by the Bank of Russia: the maximum values of risks accepted by credit institutions; norms for creation of reserves to ensure the liquidity of credit institutions and cover possible losses; requirements, failure to comply with which may adversely affect the financial position of credit institutions or the possibility of a real assessment of their financial activities, including requirements for accounting, reporting and its publication in the open press in cases established by banking legislation, the submission of audit reports and during the registration, licensing and expansion of the activities of credit institutions." The Decree of the Government of the Russian Federation of July 20, 1998 No. 851 “On approval of the statement of the Government of the Russian Federation and the Central Bank of the Russian Federation on the policy of economic and financial stabilization” predicted that “prudential norms will be tightened.” [2] Prudential norms are divided into two groups: a) regulatory prudential norms; b) protective prudential norms. Regulatory prudential standards include all those standards that establish requirements for licensing banking activities, for financial standards, for the composition and procedure for reporting credit institutions to the Bank of Russia. Protective prudential norms include those norms that provide for the grounds, procedure and forms for the implementation of banking supervision. The second group also includes all the rules that regulate the activities of the supervisory divisions of the Bank of Russia. Protective norms, in turn, should be divided into two groups: a) material; b) procedural (procedural). Substantive norms refer to the so-called substantive law, and procedural norms to procedural law (in the legal literature on the theory of law, there is an opinion that all law is divided into substantive and procedural). An example of substantive norms can be the norms of banking legislation that provide for the goals, objectives and functions of banking supervision, grounds for liability, types of sanctions that can be applied to credit institutions. These rules affect the significant civil law interests of credit institutions and their founders (participants), and indirectly - creditors and depositors. Therefore, the norms of substantive banking law are established by federal laws. For example, the total amount of a fine that can be imposed on a credit institution is established by federal law. In contrast, procedural rules are usually set by the Bank of Russia. For example, the procedure for collecting a fine from a credit institution that has violated prudential norms is established by Bank of Russia regulations. The reporting requirements for a credit institution, as well as the reporting procedure itself, are procedural rules that govern the relationship between a credit institution and the supervisory structures of the Bank of Russia. They, like the rules that govern the inspection of credit institutions, belong to the rules of prudential supervision. This is the regulation of procedures for monitoring by the Bank of Russia how credit institutions comply with the requirements of regulatory prudential standards. The procedures for this supervision can be different: documentary supervision, inspections, etc., especially those related to foreign exchange transactions and bank positions. An example of prudential protective norms of a procedural nature is the Instruction of the Bank of Russia dated February 19, 1996 No. 34 “On the procedure for conducting inspections of credit institutions and their branches by authorized representatives of the Central Bank of the Russian Federation (Bank of Russia).” This Instruction provides for the procedure for inspections that are carried out by groups of Bank of Russia experts with access to credit organizations. Note, however, that taking into account the specifics of the Russian banking system, even these procedural norms could be fundamentally provided for in banking laws. After all, it would seem that purely procedural issues, which in the conditions of stable and established banking practice should not attract attention, in the conditions of the reality that we face, require legislative regulation. Since 1996, the Russian press has repeatedly raised the issue of conflicts during inspections of the largest Russian banks. Given this circumstance, the basic principles for conducting such inspections should be enshrined in federal law. In connection with the crisis, a relatively new group of protective prudential norms appeared in the banking system. These are rules aimed at preventing bankruptcy. Federal Law No. 25-FZ of February 1999, 40 “On the insolvency (bankruptcy) of credit organizations” provides not only civil law norms, but also banking law norms that consolidate the powers of the Bank of Russia to financially improve credit organizations and prevent them from violating banking legislation , including violations of the rights of depositors. [3] In particular, in paragraph 2 of Art. 3 of this Federal Law states that “measures to prevent the bankruptcy of credit organizations are carried out when the grounds established by Article 4 of this Federal Law arise. A credit organization, its founders (participants), in the event of the occurrence of these grounds, take necessary and timely measures for financial recovery and ( or) reorganization of a credit organization. If these grounds arise, the Bank of Russia has the right to require the credit organization to take measures for its financial recovery, reorganization, and also has the right to appoint a temporary administration." These measures apply to the credit organization if it does not repeatedly satisfy the claims of individual creditors over the past six months monetary obligations and (or) does not fulfill the obligation to pay mandatory payments within three days from the date of their fulfillment due to the lack or insufficiency of funds in the correspondent accounts of the credit organization; does not satisfy the claims of individual creditors for monetary obligations and (or) fails to fulfill the obligation to pay obligatory payments within a period exceeding three days from the date of their satisfaction and (or) the date of their execution, due to the absence or insufficiency of funds in the correspondent accounts of the credit organization; allows an absolute decrease in own funds (capital) according to compared to their (his) maximum value achieved over the last 12 months by more than 20 percent while simultaneously violating one of the mandatory standards; violates the standard of adequacy of own funds (capital); violates the current liquidity standard of a credit institution over the last month by more than 10 percent (in accordance with the law, the standards are established by the Bank of Russia). Further, in Art. 4 of the mentioned Federal Law establishes a list of grounds for taking measures to prevent bankruptcy of a credit organization. [4] All these and other norms established by the Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions” apply to the so-called problem credit organizations. This Federal Law was adopted in February 1999. Prior to this, only the norms of the Civil Code of the Russian Federation were applied. Banking law in the system of Russian law The closest to banking law by the method of legal regulation is administrative law. However, banking law should not be considered as an integral part of administrative law. The banking system is not part of the state management system, therefore, the interaction of these industries is based on the application of the same method of legal regulation - imperative, and also by the fact that in many banking relations bodies with power take part, which implies inequality of parties as in administrative law. The connection between banking law and civil law in the sense of regulating banking activities is manifested in the fact that, as already noted, banking norms seem to be built on top of civil law norms and complement them. An example of this could be, say, all the rules relating to legal relations under a bank account agreement, a bank deposit agreement, and settlements. Everywhere in the text (usually at the end of the presentation) of a specific article of the Civil Code of the Russian Federation, instructions are given on banking rules and business customs. So, in Art. 836 of the Civil Code of the Russian Federation, in addition to the previous text, states that “the written form of a bank deposit agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate, or other document issued by the bank to the depositor that meets the requirements provided for such documents by law, established in accordance with with it banking rules and business customs applied in banking practice.” With regard to banking rules, the norm of civil law is a reference. In banking law, it becomes blanket. If necessary, it is, as it were, filled with the norms of not civil, but banking law. The latter are subordinate to it in connection with the priority of civil law in matters of regulating relations with a bank deposit. Banking rules create conditions for the implementation of the requirements of civil law, and not vice versa. They regulate the very service that the bank provides to customers. The interaction between banking and civil law in the aspect of banking supervision is manifested in the fact that violations of banking law become a legal fact for the emergence of a protective civil law relationship. So, in paragraph 3 of Art. 874 of the Civil Code of the Russian Federation states that in case of collection settlements in the event of non-execution or improper execution of the client's order, the issuing bank is liable to him on the grounds and in the amount provided for in Chapter 25 of the Code. If non-execution or improper execution of the client's order occurred due to violation of the rules for performing settlement transactions by the executing bank, the responsibility to the client may be assigned to this bank. The rules of banking operations are established by the laws regulating banking activities and the regulations of the Bank of Russia. Consequently, the criterion for the application of civil liability in these cases are the norms of banking law and the presence or absence of violations of these norms. The difference between banking and civil law is of practical importance for everyone who in one way or another encounters the work of the Bank of Russia or commercial banks. These differences are often not taken into account in banking legislation, which, in turn, reduces the responsibility of the Bank of Russia for its decisions, and also negates the responsibility of bankers to depositors, shareholders and all other persons who use banking services. Federal Law No. 25-FZ of 1999 February 40 "On the Insolvency (Bankruptcy) of Credit Institutions" provides that "the head of a credit institution is obliged to apply to the Bank of Russia with a request to take measures to prevent the bankruptcy of a credit institution if its founders ( participants) refused to take part in the implementation of measures for its financial recovery or reorganization, or did not take the appropriate decision within the period provided for in paragraph 3 of this article. Further in paragraph 2 of Art. 12 (“Implementation of measures for the financial rehabilitation of a credit institution at the request of the Bank of Russia”) states that “upon receiving a request from the Bank of Russia for the implementation of measures for the financial rehabilitation of a credit institution, the head of the credit institution is obliged, within five days from the date of receipt of it, to apply to the management bodies of the credit organizations referred to in Clause 1, Article 11 of this Federal Law, with a request for the implementation of measures for the financial rehabilitation of a credit institution or with a request for the reorganization of a credit institution. Now let's give an example of the differences between banking and civil law, when contradictions arise between procedural law (civil procedural, arbitration procedural, requirements of enforcement proceedings) and banking law that impede the normal procedure for the execution of court decisions. In other words, there are also contradictions between procedural and banking law, which are based on the same problem of the boundaries of legal regulation in banking law. We can say that the problem of regulation limits in banking law is the problem of the boundaries that outline the powers of the Bank of Russia (Shevchuk D.A. Banking operations. Principles. Control. Profitability. Risks. - M .: GrossMedia: ROSBUH, 2007). This is a conflict between the norms of banking and civil law, which cannot be combined within the limits of a "complex" legal relationship. In civil law, only the court can decide the dispute between the parties (and, accordingly, the enforcement of judgments). Civil law relations can be protected in other ways, but this is according to Art. 12 of the Civil Code of the Russian Federation should be directly stated in the law. Topic 2. SOURCES OF BANKING LAW Manager - hired manager, boss! If you do not have a single subordinate - you are not a manager, but a maximum specialist! Denis Shevchuk Law has an external form of its expression. The external form of manifestation of law is its sources. The sources of banking law are federal laws and by-laws based on them. The sources of law are a pyramid. The main source of Russian law is a normative act. In this sense, the Russian legal system has historically developed as a result of the influence of the continental, Romano-Germanic legal system, where, as you know, the main and practically the only source of law is a normative act. True, along with the normative acts in Russian banking law, as mentioned above, there are business customs, but only in so far as the Civil Code refers to them. In the theory of law, normative acts include the following: the Constitution of the Russian Federation, federal constitutional laws, federal laws, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, normative acts of ministries and departments, laws and other normative acts of the subjects of the Federation, normative acts of local authorities. The main source of any branch of rights is the Constitution of the Russian Federation, adopted on December 12, 1993 by popular vote. The Constitution of the Russian Federation establishes fundamental norms for banking law. It establishes the independence of the Bank of Russia's issuing function, the procedure for appointing the Chairman of the Bank of Russia and the Board of Directors, as well as a number of other issues that make up the essence of the monetary system in Russian society. In Art. 4 of the Constitution of the Russian Federation states that the Constitution of the Russian Federation and federal laws have supremacy throughout the entire territory of the Russian Federation. Therefore, all other laws, including those adopted by the subjects of the Russian Federation, cannot contradict the Constitution of the Russian Federation and federal laws. At the same time, it should be borne in mind that, according to the Constitution of the Russian Federation, financial and credit activities are regulated only by federal laws. Subjects of the Russian Federation are not granted such a right. This means that only federal government authorities can regulate the activities of credit institutions in the sense of establishing legal norms. The norms of this act contain provisions directly related to banking, for example, in accordance with paragraph f of Art. 71 the Russian Federation is in charge of establishing the legal foundations of the single market; financial, currency, credit, customs regulation, money issue, bases of price policy; federal economic services, including federal banks. In accordance with Art. The 75th monetary unit in the Russian Federation is the ruble. Money emission is carried out exclusively by the Central Bank of the Russian Federation. The introduction and issue of other money in the Russian Federation is not allowed. Protecting and ensuring the stability of the ruble, in accordance with the same article, is the main function of the Central Bank of the Russian Federation, which it performs independently of other government bodies. In the Russian Federation (Article 8 of the Constitution of the Russian Federation) the unity of the economic space, free movement of goods, services and financial resources, support for competition, and freedom of economic activity are guaranteed. In addition, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Economic activity aimed at monopolization and unfair competition is not allowed (Article 34 of the Constitution of the Russian Federation). The next level of banking law sources is federal laws. The procedure for their publication and entry into force is provided for by Federal Law No. 14-FZ of June 1994, 5 “On the procedure for publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly.” [5] In accordance with Art. 105 of the Constitution of the Russian Federation, federal laws are adopted by the State Duma. Federal laws adopted by the State Duma are submitted to the Federation Council for consideration within five days. A federal law is considered approved by the Federation Council if more than half of the total number of members of this chamber vote for it or if it has not been considered by the Federation Council within fourteen days. However, one must keep in mind that banking laws require that they be considered by the Federation Council without fail. This follows from the provisions of art. 106 of the Constitution of the Russian Federation, which provides for a list of issues on which federal laws adopted by the State Duma are subject to mandatory consideration in the Federation Council. These include, in particular, federal laws adopted on issues of the federal budget, federal taxes and fees, financial, currency, credit, customs regulation, money issue; ratification and denunciation of international treaties of the Russian Federation. Since this article talks about financial, currency and credit regulation, then, therefore, we are talking about money circulation and the activities of credit organizations. The Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" is a new edition of the Law of the RSFSR "On the Central Bank of the RSFSR (Bank of Russia)", taking into account the changes and additions made by the Federal Law "On Amendments and Additions to the Law of the RSFSR "On the Central Bank" RSFSR (Bank of Russia) "", which was adopted by the State Duma of the Federal Assembly of the Russian Federation on April 12, 1995, signed by the President of the Russian Federation on April 26, 1995 and came into force on the date of its official publication (published in Rossiyskaya Gazeta on May 4, 1995) , with the exception of certain articles, the terms and order of entry into force of which are established by Art. 5 of this Federal Law. The Law contains a generalizing concept of banks and non-bank credit organizations - "credit organizations". From the date of entry into force of the new Federal Law, the Charter of the Central Bank of the RSFSR (Bank of Russia) lost force in accordance with Art. 4 of the Federal Law “On Amendments and Additions to the Law of the RSFSR “On the Central Bank of the RSFSR (Bank of Russia)”. In accordance with Art. 1 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" the status, tasks, functions, powers and principles of the organization and activities of the Bank of Russia are determined by the Constitution of the Russian Federation, called the Federal Law and other federal laws. The location of the central bodies of the Bank of Russia is the city of Moscow. The legal status of the Bank of Russia is fixed in Art. 2 of the aforementioned Federal Law. The Bank of Russia is a legal entity, has a seal depicting the State Emblem of the Russian Federation and its foundation. The authorized capital and other property of the Bank of Russia are federal property. In accordance with the purposes and in accordance with the procedure established by federal law, the Bank of Russia exercises the authority to own, use and dispose of the property of the Bank of Russia. Seizure and encumbrance of the property of the Bank of Russia without its consent is not allowed. The state is not liable for the obligations of the Bank of Russia, and the Bank of Russia is not liable for the obligations of the state, except in cases where they assumed such obligations or unless otherwise provided by federal laws. In Art. 4 of the Federal Law, the functions of the Bank of Russia are fixed. The Bank of Russia has the right to apply to the courts with claims to invalidate legal acts of federal state authorities, state authorities of the constituent entities of the Russian Federation and local governments (Article 3 of the Federal Law). Bank of Russia according to Art. 6 of the Federal Law issues normative acts on issues referred to its competence by the Federal Law and other federal laws, which cannot contradict federal laws. The powers and functions of the management bodies of the Bank of Russia are determined by Chapter III of the Federal Law The federal law provides for the procedure for the participation of the Bank of Russia as a legal entity in the capital of credit, international and other organizations (Articles 7, 8), as well as a list of operations that the Bank of Russia can carry out (Chapter XIII). Chapter IX contains the norms that regulate the foreign economic activity of the Bank of Russia. Banking regulation and supervision of the activities of credit institutions are carried out by the Bank of Russia in the manner established by Chapter X of the Federal Law, Art. 55 of which, in particular, provides that the main goal of banking regulation and supervision is to maintain the stability of the banking system, protect the interests of depositors and creditors. At the same time, it was established that the Bank of Russia does not interfere in the operational activities of credit institutions, except for cases provided for by federal laws. The Bank of Russia has the authority to establish mandatory rules for credit institutions for conducting banking operations, maintaining accounting records, compiling and submitting accounting and statistical reports, and economic standards. However, the Federal Law prohibits the Bank of Russia from requiring credit institutions to perform functions that are not characteristic of them (Article 57). Supervision is carried out in order to implement banking regulation. The Bank of Russia has been granted the right to apply enforcement measures to credit institutions (ban on certain banking operations, collection of fines, revocation of a banking license and some other enforcement measures) (Article 75). Disputes arising from this are subject to consideration in arbitration courts. The Bank of Russia organizes non-cash payments (Chapter XII of the Federal Law). In Art. 80 of the Federal Law stipulates that the Bank of Russia is the body coordinating, regulating and licensing the organization of settlement, including clearing, systems in the Russian Federation. The Bank of Russia is authorized to establish rules, forms, terms and standards for non-cash payments. In this case, the total period of cashless payments should not exceed two business days within the subject of the Russian Federation and five business days within the Russian Federation. Foreign currency as a means of payment is used in non-cash payments for goods and services only in cases established by federal laws. The structure and principles of organization of the Bank of Russia are enshrined in the norms of Chapter XIII of the Federal Law. The territorial institutions of the Bank of Russia do not have the status of a legal entity, and their tasks and functions are determined by the Regulations on the territorial institutions of the Bank of Russia approved by the Board of Directors (Article 84). The legal status and functions of commercial banks and other credit organizations are provided for by Federal Law No. 3-FZ of February 1996, 17 “On Amendments and Additions to the Law of the RSFSR “On Banks and Banking Activities in the RSFSR”” with amendments and additions. Federal Law No. 31-FZ of July 1998, 151 introduced new changes. [6] This Law defines the concept of a credit organization, establishes the structure of the banking system and defines a list of regulations that regulate banking activities, and also provides for a number of other issues. Regulations of the Bank of Russia In connection with the need to implement the functions assigned to the Central Bank of the Russian Federation by the Federal Law of December 2, 1990 "On the Central Bank of the Russian Federation (Bank of Russia)" (as amended on April 26, 1995), the Bank of Russia is entitled to issue regulations. In Art. 6 of the said Federal Law states: “On issues within its competence by this Federal Law and other federal laws, the Bank of Russia issues regulations that are binding on federal government bodies, government bodies of constituent entities of the Russian Federation and local governments, all legal entities and individuals. Bank of Russia regulations may not contradict federal laws. Regulatory acts of the Bank of Russia come into force from the date of their official publication in the official publication of the Bank of Russia (Bulletin of the Bank of Russia), except for cases established by the Board of Directors. Regulatory acts of the Bank of Russia do not have retroactive effect. Regulatory acts Bank of Russia that directly affect the rights, freedoms or obligations of citizens must be registered with the Ministry of Justice of the Russian Federation in the manner established for registration of acts of federal ministries and departments. Regulatory acts of the Bank of Russia are sent in full, if necessary, to all registered credit institutions postal or another connection. Regulatory acts of the Bank of Russia can be appealed in accordance with the procedure established by law."[7] These legal requirements are important for the strengthening and development of the banking system. The quality of the services that credit institutions provide to their clients largely depends on how the regulations of the Bank of Russia are prepared and issued, and on what issues they regulate. From the point of view of strengthening law and order in banking relations, it is necessary to achieve compliance between laws and regulations of the Bank of Russia. As already mentioned, the rule of law is the principle of the rule of law and an indispensable condition for the formation of civil society. The document developed by the International Monetary Fund and adopted by the Interim Committee, which is called “Code of Good Practice for Transparency in Monetary and Financial Policies: Declaration of Principles,” states (clause 3.4) that “the public should have unhindered access to texts issued by the central bank of normative acts". [8] Therefore, the current system of Bank of Russia regulations should be available to a wide range of users. The only reason for non-publication of Bank of Russia regulations is the need to ensure secrecy or confidentiality provided for by law. But in the latter case, the normative act may not be published for general familiarization only if it is marked "For Official Use". The Regulations of the Central Bank of the Russian Federation (Bank of Russia) “On the procedure for the preparation and entry into force of regulations of the Bank of Russia” dated September 15, 1997 No. 519 [9] provide a number of requirements that are essential for understanding the meaning of legal norms and their correct application : the general concept of a normative act as an act that contains one or more rules of law, explains some differences between normative and non-normative acts, and also provides their classification (provisions, instructions, instructions), establishes the procedure for developing draft normative acts, their adoption, registration and publications. The aforementioned Regulations of the Central Bank say that “normative acts are subject to submission for state registration to the Ministry of Justice of the Russian Federation: containing one or more norms that directly affect civil, political, socio-economic, cultural and other rights, freedoms and legitimate interests of citizens, guarantees their implementation, enshrined in the Constitution of the Russian Federation and other federal laws; establishing, changing, supplementing or canceling the organizational and legal mechanism for the implementation of these rights, freedoms and legitimate interests, which is in force at the time of submission of the normative act for state registration. From the above quotation, it can be seen that the Regulation expands the range of those normative acts that must be registered with the Ministry of Justice of the Russian Federation, since it contains the requirements of Art. 6 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", one more requirement is added: those regulatory acts of the Bank of Russia that are qualified as "establishing, changing, supplementing or canceling the organizational and legal mechanism for the exercise of these rights, freedoms and legal interests." However, since we are talking about the rights of citizens, such acts must be published in the manner prescribed by law. Registration of acts in the Ministry of Justice is carried out in the manner established for the registration of acts of federal ministries and departments. Clause 7.2 of Regulations of the Bank of Russia No. 519, among other things, states that "normative acts are subject to submission for state registration: ▪ containing one or more norms that directly affect civil, political, socio-economic, cultural and other rights, freedoms and legitimate interests of citizens, guarantees for their implementation, enshrined in the Constitution of the Russian Federation and other federal laws; ▪ establishing, changing, supplementing or canceling the organizational and legal mechanism for the implementation of these rights/freedoms and legitimate interests, in force at the time of submission of the normative act for state registration." As Ya.A. Geyvandov "the bulk of Bank of Russia regulations containing legal norms are not controlled and verified for their compliance with federal legislation, they do not undergo legal examination in the Ministry of Justice of the Russian Federation, they are not fully covered by prosecutorial supervision, and therefore illegal regulations shall not be canceled or challenged." In many cases, the regulations of the Bank of Russia have not been officially published, although they are not marked "For Official Use". Moreover, among them there are those that affect the mechanisms for exercising the rights of depositors and creditors of credit institutions, for example, in terms of a liberal attitude on the part of banking supervisory authorities in cases of violations of standards that, one way or another, affect the interests of depositors. The essence of this problem is that any normative acts affect public interests and therefore are controlled by the state. Moreover, the procedure for this control depends on the category of the normative act. It may also happen that unpublished normative acts that do not belong to any of the categories of normative acts generally fall out of the control of the state. The decision of the Supreme Court of the Russian Federation dated November 17, 1998 No. GKPI 98-648 “On declaring illegal the decision of the Board of Directors of the Bank of Russia dated September 1, 1998 “On measures to protect public deposits in banks”” states that “this decision contains legal norms and needs in state registration due to the fact that, according to clause 10 of Decree of the President of the Russian Federation of May 23, 1996 No. 763 “On the procedure for publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies” regulatory legal acts of federal authorities, except for acts and their individual provisions containing information constituting a state secret, or information of a confidential nature that has not undergone state registration, as well as registered but not published in the prescribed manner, do not entail legal consequences as not having entered into force and cannot serve as the basis for regulating relevant legal relations, applying sanctions to citizens, officials and organizations for failure to comply with the instructions contained therein.” Further, the Supreme Court of the Russian Federation indicated that such normative legal acts are not subject to application due to the “Rules for the preparation of normative legal acts of federal executive bodies and their state registration” approved by Decree of the Government of the Russian Federation of August 13, 1997 No. 1009. In accordance with Art. 6 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" (as amended on April 26, 1995), Bank of Russia regulations that directly affect the rights, freedoms or obligations of citizens must be registered with the Ministry of Justice of the Russian Federation in the manner established for registration of acts of federal ministries and departments. Art. 16 of the Civil Code of the Russian Federation provides that "losses caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local government bodies or officials of these bodies, including the issuance of an act of a state body that does not comply with the law or other legal act or body of local self-government, are subject to compensation by the Russian Federation, the relevant subject of the Russian Federation or a municipality". Further, the same regulatory act of the Bank of Russia states (clause 1.2) that “in accordance with Article 25 of the Federal Law “On Banks and Banking Activities”, a credit institution is obliged to comply with the standards for required reserves deposited with the Bank of Russia.” [10] But Art. 25 of the Federal Law “On Banks and Banking Activities” was placed by the legislator in Chapter III, which is called “Ensuring the stability of the banking system, protecting the rights and interests of depositors and creditors of credit institutions.” In the Federal Law of December 2, 1990 No. 394-1 "On the Central Bank of the Russian Federation (Bank of Russia)", this term is also not used, but only stated in Art. 35 (p. 2) that the required reserve ratios are one of the main instruments and methods of the monetary policy of the Bank of Russia. Further, in Art. 36 says that "the Bank of Russia regulates the total volume of loans issued by it in accordance with the accepted guidelines of the unified state monetary policy." Thus, the Law provides that those loans that are issued by the Bank of Russia itself are regulated. Nothing is said here about the same loans that are issued by commercial banks. In addition, monetary policy should be consistent with the objectives of the Bank of Russia. As already mentioned, the legislation provides that one of these goals is to protect the interests of creditors and depositors. Here it turns out that the mandatory reserve as a method and instrument of monetary policy does not correspond to the objectives of this policy. It does not comply because its application does not take into account that the protection of depositors and creditors of credit institutions is a goal that is specified in the legislation, and the goal of solving the problem of multiplication and limiting loans is not indicated. Consequently, the economic method used by the Bank of Russia can at best be regarded as secondary to the need to apply certain methods to protect depositors. Another thing is that the methods in question - methods of protecting depositors and creditors of banks as practical mechanisms - in the form in which they are provided for by law, are clearly insufficient. Decree of the Government of the Russian Federation of August 13, 1997 No. 1009 "On Approval of the Rules for the Preparation of Normative Legal Acts of Federal Executive Bodies and Their State Registration", in particular, indicates that "normative legal acts are issued by federal executive bodies in the form of resolutions, orders, orders, rules, instructions and regulations. The publication of regulatory legal acts in the form of letters and telegrams is not allowed. " In banking law, this issue is relevant because it affects the significant interests of creditors. In accordance with the order of the Ministry of Justice of the Russian Federation dated April 17, 1998 No. 42 “On approval of Explanations on the application of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration” [11] from the date of entry into force of the Decree of the Government of the Russian Federation of August 13, 1997 No. 1009 “On approval of the Rules for the preparation of normative legal acts of federal executive bodies and their state registration” normative legal acts of federal executive bodies are issued only in the form of resolutions, orders, instructions, rules, instructions and regulations. Acts issued in a different form (for example, instructions, etc.) should not be of a normative legal nature. The same document provides that a normative legal act can be issued jointly by several federal executive authorities, other bodies (organizations), or one of them in agreement with the others. In this case, a normative act is considered to be issued jointly if it is signed (approved) by the heads (persons acting as heads) of several federal executive authorities and other bodies (organizations). If, according to the law of the Russian Federation, the approval of a regulatory legal act is mandatory, and also if it contains provisions, norms and instructions relating to other federal executive bodies, other bodies and organizations, the draft regulatory legal act is subject to approval, which is issued by visas of heads or deputy heads relevant federal executive authorities, other bodies and organizations. Both the Rules and the Clarifications provide that the structure of a normative legal act should ensure the logical development of the topic of legal regulation. The Explanations state that a reference in a regulatory legal act to a regulatory legal act of a federal executive body issued before May 15, 1992 and which has not passed state registration with the Ministry of Justice of the Russian Federation is not allowed. This circumstance is very significant for banking law, given that the regulations of the Bank of Russia in a number of cases refer the law enforcer to the regulations of the State Bank of the USSR. In order to streamline its rule-making activities, the Bank of Russia nevertheless adopted, albeit with a significant delay, Regulations of the Central Bank of the Russian Federation (Bank of Russia) dated September 15, 1997 No. 519 “On the procedure for the preparation and entry into force of regulatory acts of the Bank of Russia.” [12] If we consider that the Bank of Russia annually issues about a thousand different regulations, it becomes obvious that the delay in the adoption of this Regulation had a negative impact on banking law and on the practice of its application in general. The aforementioned Regulations of the Central Bank of the Russian Federation (Bank of Russia) dated September 15, 1997 set out a number of requirements for issued regulations. It is provided that regulatory acts of the Bank of Russia are “acts of the Bank of Russia aimed at establishing, amending or repealing rules of law as permanent or temporary regulations, mandatory for a circle of persons determined by the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” and these Regulations , designed for repeated use on the territory of the Russian Federation." Regulatory acts of the Bank of Russia are adopted by it on issues within the competence of the Bank of Russia by the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” and other federal laws. They are mandatory for federal government bodies, government bodies of constituent entities of the Russian Federation and local governments, all legal entities and individuals. At the same time, Bank of Russia regulations cannot contradict federal laws. They do not have retroactive effect. The Regulation states that if an act of the Bank of Russia contains one or more rules of law, then it refers to the regulations of the Bank of Russia and is subject to adoption in accordance with this Regulation and other regulations of the Bank of Russia governing the procedure for preparing and enacting Bank of Russia regulations The following acts of the Bank of Russia are not regulatory acts of the Bank of Russia; acts of interpretation of the regulations of the Bank of Russia and (or) other regulatory legal acts of the Russian Federation within the competence of the Bank of Russia, if it is directly authorized to interpret the said regulatory legal acts; acts containing exclusively technical formats and other technical requirements; other acts that do not meet the features of a regulatory act of the Bank of Russia specified in clause 1.2 of the Regulations. For the first time, the forms for issuing Bank of Russia regulations have been clearly established: a) instructions from the Bank of Russia; b) the position of the Bank of Russia; c) instruction of the Bank of Russia. Regulations of the Bank of Russia are adopted in the form of instructions if, in terms of their content, they establish separate rules on issues within the competence of the Bank of Russia, in the form of instructions on changing and supplementing the current regulation of the Bank of Russia, if they contain provisions on changing certain provisions of the current regulation of the Bank of Russia and ( or) on amendments to the regulatory act of the Bank of Russia; in the form of instructions to cancel the current regulatory act of the Bank of Russia, if they cancel the current regulatory act of the Bank of Russia as a whole. Normative acts of the Bank of Russia are adopted in the form of regulations, if their main content is the establishment of systematically interconnected rules on issues within the competence of the Bank of Russia. Regulations of the Bank of Russia are adopted in the form of instructions if their main content is to determine the procedure for applying the provisions of federal laws, other regulatory legal acts on issues within the competence of the Bank of Russia (including instructions and regulations of the Bank of Russia). Topic 3. BANKING SYSTEM OF THE RUSSIAN FEDERATION The concept of banking activity is determined by its essential features and elements that unite them. These signs and elements, in our opinion, include the subject, goals, subjects, content and legal regulation of banking. The banking system in Russia includes two subsystems: the Bank of Russia and credit institutions. All relations between these subsystems arise, change and terminate in connection with their banking activities. Banks and other credit institutions operate in a certain sector of the market - in the system of monetary and financial relations: This determines the subject of their activities: money, currency values, other financial instruments. The regularities of the monetary system (issue of money and money circulation, accumulation of money and their placement) are largely determined by the functions of money. The most effective implementation of these functions in the form of banking services is the subject of activity of credit institutions. a) The function of money as a measure of value is realized in such forms of banking activities of credit institutions as opening and maintaining bank accounts; crediting funds to bank accounts, currency revaluation, interest accrual, etc. In relation to the Bank of Russia, this function is manifested in such types of its activities as the issuance of money, maintaining their exchange rate and purchasing power, and organizing the settlement system in the country. b) Informational function of money. As for the entries in the accounts, ti they are nothing but money, but only in a non-cash form. Money can have a paper form (cash) or a dematerialized form (digital record on the account, electronic media). In our opinion, non-cash money is a specific type of banking information that is used in settlements. Account entries are information about the value of money. Banking activity can be represented as a constantly changing information system, which is just a reflection of the finances and the movement of money in the accounts of a particular bank. Accordingly, money circulation is the circulation of value information within the entire monetary and financial system. In this regard, the importance of the role played by information and its legal protection in the banking system becomes quite obvious. For example, information can increase or, conversely, reduce the attractiveness of bank deposits, shares, and various financial instruments of securities. Therefore, the banking activities of credit institutions and the banking activities of the Bank of Russia are interconnected in a number of areas. At the same time, only the Bank of Russia issues money and organizes money circulation in the country. In this, as well as some other features, its banking activity differs from the activities of commercial banks and other credit organizations. c) Money performs the function of a means of circulation (payment). Accordingly, credit organizations provide a direct circulation of money. They are integrated into the general monetary banking system, have correspondent relations with the Bank of Russia and other credit organizations, carry out settlements between various organizations, enterprises and institutions: The function of world money is manifested in various kinds of servicing export-import operations by banks, in such as a transfer, foreign currency exchange, in various kinds of conversion operations, etc. d) Money has a systemic function. The system function of money is that they perform the function of accumulation. Accordingly, commercial banks accept deposits and issue loans. In this sense, the movement of loan capital or, for example, the attraction of deposits can be represented as certain systems that acquire new qualities as they are combined into more productive systems in which an increment in the value of money occurs. Banks accumulate capital as a monetary system. Then they allocate capital. Thus, the monetary microsystem of a credit organization is integrated into other systems through banking activities, for example, into systems of the real economy through the stock market. Objectives of banking The objectives of the banking activities of credit institutions and the objectives of the activities of the Bank of Russia are different. This is due to their legal status and functions in the monetary and financial systems: the Bank of Russia is a public institution that regulates the banking system and exercises banking supervision, while the role of credit organizations is determined by private economic needs and interests. a) Credit institutions strive to get the maximum profit from their banking operations and transactions. In this sense, banking activity is a kind of entrepreneurial activity. However, it is limited only to the framework of banking operations and transactions. As will be shown later, credit organizations are prohibited from engaging in production, trade and insurance activities. b) The activities of the Bank of Russia, as already mentioned, are determined by the following goals: maintaining the exchange rate and purchasing power of the ruble; strengthening and development of the banking system and organization of an efficient settlement system. Therefore, as provided in the law, this activity is not aimed at making a profit. At the same time, the law provides that all expenses of the Bank of Russia are reimbursed from its income, and in accordance with this, it carries out all types of banking operations. The content of banking In terms of its content, banking activity includes a list of possible banking operations provided for by law and a banking license. In Art. 5 of the Federal Law "On Banks and Banking" named not only banking operations, but also transactions. Note that the current legislation does not contain a normative definition of the concept of a banking operation, but only uses these terms in Art. 5 of the said Law. The federal law provides that all banking operations and transactions are carried out in rubles, and in the presence of an appropriate license from the Bank of Russia - in foreign currency. a) Banking activities are banking operations and transactions, as well as other actions of a credit institution, which are directly aimed at developing the efficiency and increasing the security of banking services. Banking has many facets. It is necessary to distinguish between the main and auxiliary banking activities. The main banking activity is the activity of a credit institution, which includes banking operations and transactions (V.A. Shevchuk, D.A. Shevchuk. Banking Law: Study Guide. - M .: RIOR Publishing House, 2005). Auxiliary banking activities are aimed at providing favorable and safe conditions for the implementation of the main banking activities. These activities are indirectly related to the results of the core banking activities. For example, auxiliary banking activities include informatization, security, a security system and other similar activities of various divisions of a credit institution (Shevchuk D.A., Shevchuk V.A. Money. Credit. Banks. A course of lectures in a concise presentation: Training method. allowance - M: Finance and statistics, 2006). The content of the concept of "banking" in addition to the theoretical has a purely practical and even applied value (for example, for the correctness of accounting, determining financial results and tax payments). At the same time, we recall that the Bank of Russia establishes accounting rules and controls their implementation by credit institutions. In addition, he supervises the financial position of credit institutions. From this point of view, as well as for other legal reasons, it is desirable that precise concepts are enshrined in the laws regulating banking activities. However, Federal Law No. 3-FZ of February 1996, 17 “On Amendments and Additions to the Law of the RSFSR “On Banks and Banking Activities in the RSFSR”” does not contain a definition of the concept of “banking activities”. Meanwhile, in practice, this gives rise to many ambiguities, since the term itself is used in a number of regulations. The supervisory divisions of the Bank of Russia face the same difficulties during inspections of credit institutions. Sometimes on the same issues there is a dispute between the tax authorities, credit institutions and the Bank of Russia. For example, in regulations governing the procedure for attributing certain costs to bank expenses, the wording "if the costs relate to banking activities" is used. The question of what relates and what does not relate to banking can sometimes become the subject of a dispute between the tax inspector and the bank, and, as the practice of litigation between tax authorities and banks confirms, it is very relevant. b) Entrepreneurial activity of a credit institution is limited. This limitation is explained by the fact that a credit institution, unlike other commercial organizations, uses borrowed funds and thereby creates a certain risk not only for itself, but also for its clients. Therefore, in Art. 5 “Banking Operations and Other Transactions of a Credit Institution” of the “Federal Law “On Banks and Banking Activities”” states that a credit institution is prohibited from engaging in production, trade and insurance activities. It is clear that if credit institutions begin to engage in entrepreneurial activities, this will lead to a decrease in the liquidity of assets, not to mention the fact that in a country with a high crime rate this will facilitate the commission of various fraudulent transactions. However, credit organizations can always circumvent this ban. It is known that some banks were engaged in the fact that they created subsidiaries (at best) or even shell companies and safely transferred money from clients, including depositors, there. At the same time, they themselves, of course, did not engage in any trading activities. The federal law could have provided for more restrictions, in addition to the ban on "engaging in manufacturing, trading and insurance activities," but it did not provide for them. Such restrictions, but only clear and understandable, are needed. In Russia, it is very important to take measures to ensure that assets are not withdrawn from banks. Subjects of banking activity Banking entities are the Bank of Russia and credit institutions. They have special legal capacity, which is used by them to establish and carry out banking activities. At the same time, their legal capacity is determined by the goals of banking activities enshrined in the law. These goals are different, therefore, the nature and scope of their legal capacity are different. a) The Bank of Russia acts in accordance with its legal status, enshrined in the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". It regulates the process of creating the banking system and, accordingly, is responsible for preventing systemic risks that arise in the process of interaction between credit institutions. Therefore, it establishes certain financial standards that all credit institutions must comply with. But above all, it registers newly created commercial banks and other credit organizations. He is obliged to organize the regulatory regulation of all banking activities and supervision of it in accordance with the requirements of the Constitution of the Russian Federation, federal constitutional laws and federal laws. b) Credit institutions are commercial legal entities and act on the basis of their charters and in accordance with the licenses issued to them by the Bank of Russia in order to make a profit. They are created in the organizational and legal form provided for by civil law. However, the Federal Law "On Banks and Banking Activity" narrowed down the possibilities of using other organizational and legal forms in banking, except for a business company - a joint-stock company, a limited liability company and an additional liability company. Topic 4. CONCEPT AND CONTENT OF BANKING OFFENSES The concept and composition of the banking legal relationship The significance of any legal relationship lies in the fact that legal entities and individuals, various organizations in the course of their practical activities compare and evaluate their actual behavior and the behavior of other participants in a particular respect with what the behavior should be in accordance with the requirements of the regulatory act. A banking legal relationship is a relationship between the subjects of banking law, regulated by the norm of banking law, one of the parties of which is the Bank of Russia. It can also be said that a banking legal relationship is a legal relationship between subjects of banking law, the main content of which is the rights and obligations arising from the observance, execution, use and application of the procedure for conducting banking operations and transactions established by laws and regulations of the Bank of Russia. For example, between the Bank of Russia and a credit institution there is a legal relationship for the latter to comply with the standards established for it. In fact, there may be some deviations from the financial activity model established for this legal relationship - the only question is the degree of discrepancy. But a legal relationship should be considered not an actual relationship that contains deviations, but a legal one, that is, such as it should be in this situation. Such an approach always makes it possible to compare the legal and the factual in relations between subjects, without mixing one with the other. A banking relationship is the legal form of an actual banking relationship. Therefore, the concept of legal relationship includes only what is legal. There should not be any non-legal (actual) elements in the content of the legal relationship itself. Legal and actual social relations are interrelated, but not coinciding concepts. A banking legal relationship is a legal relationship between entities, one of which is always the Bank of Russia. It is provided for by the norm of banking law, therefore its volitional content is built in accordance with the method of legal regulation of banking law - the method of an imperious order. This is a vertical relationship. The legal relationship between a credit institution and the Bank of Russia arises from the moment of its registration and is terminated by the deletion of the corresponding entry in the State Registration Book of Credit Institutions. In the interval between these reference points, numerous changes in the banking legal relationship can occur and, as a rule, occur, associated with obtaining various licenses, amending the constituent documents, coordinating the heads of a credit institution, its reorganization, and transformation. Such a legal relationship is a status one. In this banking legal relationship, the status of a credit institution is realized. However, a credit institution has not only a status, legal status, which, as you know, change over time, but also functions. The functions of a credit institution are the main directions of its banking activities. They are carried out through banking operations and transactions. In the process of banking operations and transactions between a credit institution, depositors, creditors and all other persons who use banking services, civil law relations arise. Civil law relations regulate only that part of banking activity, which is an object of civil law. Other branches of law have their objects in banking. One of the leading universities in Russia in the field of law, finance, banking, property valuation and management is the Moscow State University of Geodesy and Cartography (MIIGAiK), in particular the Faculty of Humanities (GUF) and the Faculty of Economics and Territory Management (FEUT). The procedure for conducting banking operations and transactions is governed by the rules established by banking laws and the Bank of Russia. This procedure is an object of banking law. A credit institution is obliged to comply with the rules established for conducting banking operations and transactions. Compliance with the requirements established by these rules gives rise to operational banking legal relations between the credit institution and the Bank of Russia. The operational banking legal relationship between the Bank of Russia and a credit institution is constructed vertically. But banking activity is one, and therefore civil and banking legal relations are closely interconnected. This means that each civil legal relationship between a credit institution and its client, including a depositor (horizontal legal relationship), corresponds to a banking legal relationship - between the Bank of Russia and a credit institution (vertical legal relationship). Such is the logic of the method of legal regulation in banking law - the method of imperious order. In the legal literature, according to the author (Shevchuk D.A.), the concept of a banking legal relationship is defined too broadly. The scope of the concept largely depends on how the structure of the legal relationship is understood. Some authors believe that the banking legal relationship is complex, that it is regulated by the norms of both public and private law. The subject composition of a banking legal relationship includes only legal relations between credit institutions and the Bank of Russia, as well as between the founders of a credit institution and the Bank of Russia at the time of the creation, reorganization, transformation or liquidation of the bank, including procedures related to its sanitation. In banking law, unlike civil law, only the method of imperious order is used. The norms of banking law are imperative. They do not provide for equality of arms. This largely determines the structure of the legal relationship, and hence its specificity, subject composition. Any legal relationship, and banking in this respect are no exception, arise, change and terminate due to legal facts. Legal facts are divided into events (circumstances independent of the will of the parties) and actions committed by the will of the parties. In accordance with Art. 8 of the Civil Code of the Russian Federation, civil rights and obligations arise from the grounds provided for by law and other legal acts, as well as from the actions of citizens and legal entities, which, although not provided for by law or such acts, but by virtue of the general principles and meaning of civil law give rise to civil rights and obligations. In accordance with this, civil rights and obligations arise: 1) from contracts and other transactions provided for by law, as well as from contracts and other transactions, although not provided for by law, but not contrary to it; 2) from acts of state bodies and local self-government bodies, which are provided by law as the basis for the emergence of civil rights and obligations; 3) from a court decision that established civil rights and obligations; 4) as a result of the acquisition of property on grounds permitted by law; 5) as a result of creation of works of science, literature, art, inventions and other results of intellectual activity; 6) as a result of causing harm to another person; 7) due to unjust enrichment; 8) due to other actions of citizens and legal entities; 9) due to events with which the law or other legal act connects the onset of civil legal consequences. All these grounds can also be applied in banking law. All legal banking relations can be conditionally divided into two large groups: ▪ legal relations in which its competence is exercised in the system of separation of powers, that is, external legal relations in relation to the banking system as a whole. These are constitutional legal relations on the formation of its highest governing bodies, on interaction with the legislative and executive authorities in the state. In addition, in some cases, the Bank of Russia is the subject of certain international legal relations; ▪ legal relations within the banking system, in which the functions of the Bank of Russia provided for by law are carried out. This includes all legal relations in which credit organizations and the Bank of Russia are participants. Relationships of any kind include: ▪ object, i.e. something about which legal relations are formed; ▪ subject, i.e. participant in legal relations; ▪ rights and obligations of subjects of legal relations. Objects of banking legal relations The object of the banking legal relationship is banking activity and the social relations arising in connection with it, the content of which is a banking operation or a banking transaction. Banking operations and banking transactions are carried out by a credit institution for the purpose of providing banking services and making a profit, which, in turn, can be considered as part of banking activities. However, banking activity is not limited to this. It can be the object of other legal relations, such as, for example, civil law, financial or tax. The delimitation of legal relations is important for determining the nature of the rights, duties and responsibilities of the participants in the relevant legal relations. Banking activity is a common object for the whole complex of legal relations that are somehow connected with it. But in this general object there are elements that become objects of specific branch legal relations. The objects of banking legal relations and tax legal relations are closely related to each other, but by their nature they are different. And these differences are largely due to the subject of legal regulation in banking law and the specifics of the object: banking legal relations. In tax law, the administrative-legal method of regulation and sanctions of administrative law are used. In banking law, as already mentioned, completely different sanctions are applied. At the same time, the general object - banking activity - is not clearly defined in the legislation. At least in Art. 5 of the Federal Law "On Banks and Banking Activity" only lists banking operations and banking transactions, but does not provide a definition of banking activity. In practice, this causes some difficulties, for example, in determining financial results in connection with determining the composition of costs included in the cost. Subjects of banking legal relations Banking activity is regulated primarily by civil and banking law. Some fundamental relations between the Bank of Russia and state authorities are regulated by the Constitution of the Russian Federation. The Bank of Russia and credit organizations are the main subjects of banking legal relations. In some cases, the subjects of legal relations are participants in credit institutions (creation, reorganization, financial rehabilitation, termination and liquidation of a credit institution). Clients of credit institutions, shareholders and depositors, as a rule, are subjects of civil law relations. Banking law regulates banking operations and transactions related to the specifics of banking activities insofar as it is related to the implementation of banking technologies. A depositor or other person who uses banking services is not a subject of banking legal relations. Depositors are not granted the right to check how accounting is kept in the bank, including for its own deposit, whether banking operations are correctly executed and recorded, whether the bank complies with the relevant economic standards that apply specifically to depositors. The depositor does not know and does not have the right to require the bank to provide information on how the bank manages risks, what information products it uses, where it places the attracted funds. The depositor's capabilities are limited only to what is directly related to the conclusion of a civil law agreement for a bank deposit and is indicated in Art. as a legal guarantee of this. 8 “Providing information on the activities of a credit organization” of the Federal Law of February 3, 1996 No. 17-FZ “On Amendments and Additions to the Law of the RSFSR “On Banks and Banking Activities in the RSFSR””, which states that “when carrying out banking operations a credit institution is obliged, at the request of an individual or legal entity, to provide a license to carry out banking operations, information on its financial statements (balance sheet and profit and loss account) and an audit report for the previous year, as well as monthly balance sheets for the current year. and legal entities by misleading by failure to provide information or by providing false or incomplete information, the credit institution is liable in accordance with this Federal Law and other federal laws." [13] There is a regulation of the Bank of Russia in this regard, establishing a list of information that must be provided by a credit institution at the request of a depositor. Directive of the Central Bank of March 27, 1998 No. 192-U “On additional measures to protect the interests of bank depositors” provides that “credit organizations provide interested parties with information about their activities in the manner established by clauses 6.1 and 6.2 of this Directive, namely banks in localities of their work on accepting and issuing funds to individuals, provide the following information for a general overview of the bank as a whole: a) copies of Bank of Russia licenses to carry out banking operations, as well as the address (at least one address in a populated area) at which an interested person can receive for review: a balance sheet for 2nd order accounts, drawn up in Form No. 101 of the Bank of Russia Instructions dated October 24, 1997 No. 7-U “On the procedure for drawing up and submitting reports by credit institutions to the Central Bank of the Russian Federation” (in thousands of rubles); b) profit and loss statement in form No. 102; [14] c) aggregated balance sheet (form No. 113, column A and column 2 without indicating its name) (in thousand rubles); d) aggregated profit and loss statement in form No. 114 (column A and column 2 without indicating its name) (in thousand rubles); e) an audit report indicating the name of the audit firm and the license number of the Bank of Russia to carry out auditing activities in accordance with clauses 4.6 and 4.7 of Bank of Russia Regulation No. 23-P dated December 1997, 10 “On the procedure for drawing up and submitting to the Bank of Russia an audit report based on the results of audit of the activities of a credit institution for the year." If a positive audit report is drawn up, the following entry is made in its final part: “The audited annual financial statements have been prepared in all material respects in accordance with the laws and regulations governing the procedure for maintaining accounting records and preparing financial statements in the Russian Federation, and accepted accounting principles "The reliability of the balance sheet and income statement has been confirmed." The auditing firm (auditor) certifies with its seal and signature the head of the company (authorized person) each sheet of the forms of the specified financial statements (balance sheet and profit and loss statement of the credit institution). The reporting prepared for publication is accompanied by a similar record, which is certified by the seal and signature of the head of the company (authorized person). If a positive conclusion is drawn up with reservations, the following entry is made in its final part: “The audited annual financial statements, taking into account the changes made in all significant aspects, have been prepared in accordance with the laws and regulations governing the procedure for maintaining accounting records and preparing financial statements in the Russian Federation, and accepted accounting principles." In accordance with clause 2.8 of the cited Directive, the record must also contain a statement of other significant violations identified during the inspection. The auditing firm (auditor) certifies with its seal and signature the head of the company (authorized person) each sheet of the forms of the specified financial statements (balance sheet and profit and loss statement of the credit institution). The reporting prepared for publication is accompanied by a similar record, which is certified by the seal and signature of the head of the company (authorized person). If there are significant violations on any issue included in the audit, which do not allow us to give either a positive or a positive opinion with reservations, the audit firm (auditor) prepares a negative opinion. The absence of the auditor's seal and signature indicates a lack of confirmation of the reliability of the reporting presented to the auditor. Upon completion of the audit conducted by the audit firm (auditor), the audit report as a whole is signed by the head of the company or his authorized person, certified by the seal of the audit firm and dated. [15] Banks are required to provide the specified information for the following periods: balance sheet and aggregated balance sheet - for the month preceding the current month, Sberbank of the Russian Federation - within the last two months, but no later than the 10th day of the second month; profit and loss statement and aggregated profit and loss statement - for the year preceding the current one; audit report - for the year preceding the current one. In addition, banks are entitled to submit profit and loss statements, as well as an audit report for periods within the current year. There are also deadlines for updating information. It is also provided that credit institutions have the right to disclose information about their activities through the Bank of Russia website on the Internet, as well as in other ways that ensure the availability of information to an unlimited circle of people. Upon receipt of a letter from a credit institution containing consent to the disclosure of information, the Bank of Russia shall post it on the Bank of Russia website on the Internet. If banks fail to comply with the requirements to provide information listed in clause 6.1 of the cited Directive, enforcement measures will be applied to them in accordance with Art. 75 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". Clause 8 of the Directive provides that clause 4 of the Directive is valid until the entry into force of the federal law on insurance of deposits of individuals, provided for in Art. 38 of the Federal Law “On Banks and Banking Activities”, unless otherwise established by regulations of the Bank of Russia, but no later than January 1, 2000. [16] Now let's assume that some requirement of the Instruction is violated, and the depositor files a complaint with the Bank of Russia. What legal relations arise in this case between the Bank of Russia and the credit institution? Is the Bank of Russia obliged to resolve a dispute between a depositor and a credit institution? According to paragraph 2 of Art. 11 of the Civil Code of the Russian Federation “protection of civil rights in an administrative manner is carried out only in cases provided for by law. A decision made in an administrative manner can be appealed to the court.” But the Bank of Russia is not vested with the right to protect civil rights administratively. In addition, as already mentioned, its regulations are not regulations of administrative law. Consequently, the depositor's appeal to the Bank of Russia does not give rise to any administrative-legal relations. At the same time, having received a complaint from a depositor, the Bank of Russia, in accordance with the current legislation, is not obliged to conduct checks on complaints from individuals and legal entities with subsequent provision of information to them and does not have the authority to conduct such checks. If we assume that, upon a complaint received, the Bank of Russia will appoint an inspection in order to protect the rights of a particular depositor, then in this case it will have to take a written explanation on this fact from the credit institution. But if the Bank of Russia chooses a written explanation, then a legal case will arise and it will have to resolve the dispute between the credit institution and the depositor in a specific case. However, an attempt to resolve such a dispute could mean that the Bank of Russia violates the requirements of paragraph 2 of Art. 11 of the Civil Code of the Russian Federation, which states that the protection of civil rights in the administrative procedure is carried out only in cases provided for by law. Does this mean that the Bank of Russia should disregard the depositor's complaint and recommend that he go to court? It seems that the Bank of Russia is only obliged to give an answer to the depositor that such disputes are resolved in court. But since the Bank of Russia is responsible for banking supervision, then, therefore, it is obliged to check the complaint received for compliance by the credit institution with the requirements of the Instruction of the Bank of Russia ... The reason for the emergence of a supervisory legal relationship in such cases is the depositor’s complaint, but the legal relationship does not arise between the Russia and the depositor who applied to it, but between the Bank of Russia and the credit institution it supervises. Subjective rights and duties A subjective right is a right that belongs to the subject as a participant in the legal relationship. Subjective right includes three powers: a) the right to own actions; b) the right to demand from the other party in a legal relationship the performance of its obligations; c) the right to protect their violated subjective right. In a banking legal relationship, each of the parties has its own rights and obligations. The Bank of Russia has the right to demand from a credit institution that the credit institution conduct a specific banking operation in accordance with the requirements of banking laws and, in addition, in accordance with the banking rules established by the Bank of Russia. A credit institution is obliged to comply with all the requirements of the Bank of Russia - to conduct operations properly (make appropriate entries in accounting, correctly draw up accounting documents, violate economic standards, etc.). On the other hand, a credit institution also has the right, having demanded from the Bank of Russia to provide the banking information it needs, to comply with the confidentiality provided for by law, to demand that the Bank of Russia impose on it only those requirements that are provided for by banking laws and banking rules. If the Bank of Russia violates its rights, the credit institution has the right to apply for protection to the arbitration court. Topic 5. SUBJECTS OF BANKING LAW IN THE RUSSIAN FEDERATION General provisions on subjects of banking law Subjects of banking law are persons who are provided for by banking law as possible participants in banking legal relations. The subjects of banking legal relations, as a rule, are the Bank of Russia and a credit institution. At the stages of registration and licensing, reorganization and liquidation of a credit institution, the Bank of Russia and the founders (members) of the credit institution and its creditors may act as subjects of banking law. A credit institution is a party that is responsible not only to the client, but also to the Bank of Russia. A credit institution, as a rule, is a subject of both civil law and banking relations. In the process of banking operations, both horizontal (civil law) and vertical (banking) legal relations arise simultaneously. A horizontal legal relationship has an independent meaning, but at the same time it is a legal fact with which the law and regulations associate the need for a vertical legal relationship. So, for example, the conclusion of a bank deposit agreement gives rise to a legal relationship between a commercial bank and a depositor. This is a horizontal (civil law) relationship. But at the same time, a vertical (banking) relationship automatically arises between the Bank of Russia and a commercial bank. The essence of this legal relationship is that a commercial bank is obliged to correctly (in accordance with the requirements of banking laws and regulations of the Bank of Russia) carry out an operation to attract a deposit, for example, make the necessary entries in accounting. In the same legal relationship, the Bank of Russia acquires the right to require a commercial bank to comply with these requirements. For example, a civil legal relationship arises between a borrower receiving a loan and a credit institution with mutual rights and obligations towards each other. But unlike a credit institution, the borrower is not a subject of banking law. A borrower who has received a loan from a commercial bank does not bear any duties or liability to the Bank of Russia, and cannot and should not be subject to any sanctions from the Bank of Russia. The subject of banking law in this case is only a commercial bank, since the very fact of issuing a loan to a client gives rise to a legal relationship between the commercial bank and the Bank of Russia. The essence of this legal relationship in our example is that the credit institution must report to the Bank of Russia that it has created a reserve in accordance with the requirements of clause 2.7 of the Central Bank Instruction No. 30a dated June 1997, 62 “On the procedure for the formation and use of reserves for possible loan losses,” [17] and the Bank of Russia has the right to require such a report. Accordingly, all requirements for the classification of loans and the creation of an adequate reserve apply only to the credit institution, since it is it (and not the client) that must compensate for the risk of possible non-repayment of the loan issued to the borrower. Credit organization as a legal entity Prior to the introduction of amendments to the Civil Code of the Russian Federation (June 1999), there was no clear solution in the legislation as to whether the founders (participants) of a credit institution are subjects of banking law. It was not clear in which cases the same persons are subjects of civil law, and in which cases - subjects of banking legal relations. In this regard, it was necessary to determine, firstly, to what extent the laws regulating banking activity affect the rights and interests of the founders (participants) of a credit institution, and, secondly, whether the Bank of Russia has the right to extend the effect of its regulations to the founders (participants) credit organization. This issue has not been considered in theory. Therefore, the uncertainty in legislation was aggravated by the uncertainty of the theoretical constructions of the concept of banking law and banking legal relations. Meanwhile, the need to answer this question was dictated by practice and its contradictions in cases where there was a need to rehabilitate credit institutions in connection with the procedures for revoking banking licenses. After all, the power of the Bank of Russia did not extend to the founders (participants) of credit organizations. And even with the adoption of the Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions” in 1998, the situation remained controversial, since this Law still contradicted the Civil Code of the Russian Federation in terms of the powers of the Bank of Russia in relation to the founders (participants) of banks. In June 1999, paragraph 3 of Art. 87 of the Civil Code of the Russian Federation was supplemented by the second paragraph with the following content: “Features of the legal status of credit organizations created in the form of limited liability companies, the rights and obligations of their participants are also determined by the laws regulating the activities of credit organizations.” Clause 5, Art. 90 of the Civil Code of the Russian Federation - paragraph two with the following content: “The rights and obligations of creditors of credit institutions created in the form of limited liability companies are also determined by the laws regulating the activities of credit institutions.” Clause 3 art. 96 - paragraph three with the following content: “Features of the legal status of credit organizations created in the form of joint-stock companies, the rights and obligations of their shareholders are also determined by the laws regulating the activities of credit organizations.” [18] By the same Law, paragraph 1 of Art. 101 has been supplemented with paragraph three as follows: “The rights and obligations of creditors of credit institutions created in the form of joint-stock companies are also determined by the laws regulating the activities of credit institutions.” [19] Thus, some clarity has been introduced into the legal status of the Bank of Russia, on the one hand, and the founders (as well as participants, shareholders) of the credit organization, on the other. Now, with the adoption of these amendments to the Civil Code, the relationship between the Bank of Russia and the founders (participants) of credit institutions is regulated by banking law, and this does not contradict civil law. In turn, this means that in cases provided for by laws regulating the activities of credit institutions, the power of the Bank of Russia extends not only to credit institutions, but also to their founders. The Bank of Russia, as a subject of banking law, is not interested in replacing banking law with, say, civil law and, conversely, in blurring the line between them. If such a substitution of concepts nevertheless occurs, if the boundary between banking and civil law is lost, then this creates unreasonable responsibility of the Bank of Russia not only as a subject of banking law, but also as a subject of civil law. For example, the limits of banking supervision are clearly outlined in Art. 55 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”, and therefore the Bank of Russia does not interfere in the operational activities of a credit organization. But if the Bank of Russia had the right and obligation (competence) to intervene in the operational activities of a credit organization, control how it complies with civil law and its contractual obligations, and give it instructions in this regard, then it could be jointly and severally liable in the event of a violation credit organization of its contractual relations. The Bank of Russia should supervise how a credit institution complies with banking laws, financial regulations and the requirements of Bank of Russia regulations. At the same time, the Bank of Russia also studies the extent to which a credit institution complies with civil law norms, but only to the extent that this is related to checking the credit institution’s compliance with banking rules, since civil law relations are most often those legal facts that, as already it has been said, give rise to banking legal relations. Therefore, in order for the Bank of Russia, in the process of banking supervision, to be able, say, to check the compliance of a credit institution with economic standards, it must, among other things, study, for starters, loan agreements and the conditions that they provide. But this is not done in order to understand the relationship between the credit institution and borrowers, in their possible claims against each other (such a dispute is resolved in court), but in order to check the existence of legal facts (loan amount, terms, interest, security , the presence of delay, etc.) and determine the degree of risk for a particular loan, check the correctness of accrual of income and expenses taking into account this loan, check the correctness of bank accounting and other facts that are provided for by banking law and, therefore, may become the subject of supervision and inspection from the Bank of Russia. In the legal aspect, these contractual conditions, as facts, simultaneously give rise to rights and obligations in specific banking legal relations between the Bank of Russia and a credit institution. For example, as a result of such an audit, a credit institution may be determined by the Bank of Russia as financially unstable or as having submitted false reports. She could be fined, or worse, have her license revoked. All this is banking law, and it must be clearly distinguished from civil law. This is necessary in the interests of protecting the rights of all participants in banking legal relations, strengthening law and order. Guarantees for the protection of depositors and other customers of the bank As already mentioned, banking law is basically imperative, therefore, clients of credit organizations, in particular depositors, are not subjects of banking law, but subjects of monetary relations, and only to the extent that is regulated by civil law. If banking law extended to clients and depositors, then such regulation would come into conflict with civil law, which provides for freedom of contract. Therefore, if banking law grants certain rights to a particular depositor in relation to the Bank of Russia, then at the same time it must also create obligations in relation to him in accordance with the principle of unity of rights and obligations in legal relations. Then the Bank of Russia will gain power over the depositor, which is contrary to the principle of freedom of contract in civil law. Such a contradiction could not exist if the Bank of Russia were only a regulator and arbiter, would not have its own interest in civil law and would not be responsible for the entrepreneurial activities of the commercial banks it created, in whose capital it participates. These are the banks that will be discussed below and in the authorized capital of which the Bank of Russia owns the majority of shares - for example, in Sberbank. It turns out that the Bank of Russia is engaged in commercial activities both as a regulator and as a controller, but not directly, but indirectly, through a limited circle of banks it created. Naturally, such a situation should be considered unnatural from the point of view of the law. About 80 percent of all deposits of the Russian population are concentrated in Sberbank. True, there was a period when in 1996 some commercial banks, for example JSCB Inkombank, began to catch up with Sberbank in terms of the growth rate of depositors, but this period was short-lived and quickly ended. Potentially, this is a reserve for the redistribution function in the monetary and financial systems in conditions of instability and ineffective management of social processes. This may be why Russian banking legislation does not provide for public law banking relations between the depositor and the Bank of Russia. But this reduces the quality level of banking law. In passing, we note that the situation indirectly confirms that law cannot be higher than the economy and the cultural development of society conditioned by it. Banking law should create conditions for competition and protection of the interests of owners who have invested their money in a bank and entrusted it to it; this applies in particular to bank customers and small depositors. This is the general trend in many countries of the Western world. For example, in France, the Banking Law of 1984 places this responsibility on the Bank of France, while the specific control functions under the Law of 4 August 1993 are carried out by the Banking Commission, to which the Bank of France provides its funds for the performance of these functions. In Russia, this obligation is not directly formulated in banking legislation. In Part 3 of Art. 55 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” only states that “the main goal of banking regulation and supervision is to maintain the stability of the banking system and protect the interests of depositors and creditors.” As will be shown later (in Chapter IV), even these vague formulations are not supported by anything concrete and conflict with the legal status of the Bank of Russia, designed in accordance with the interests of a certain part of the banks, but not in accordance with the interests of depositors and creditors. Banking law should provide certain guarantees for depositors and other persons who use the services of credit institutions. All these guarantees, in our opinion, can be classified depending on the method of ensuring the rights and legitimate interests of depositors and creditors: a) organizational; Control over the functioning of the bank belongs to the sphere of banking law. According to the current legislation, depositors and other persons using banking services are subjects of civil, but not banking law. Therefore, they cannot control the correctness of banking operations or, say, compliance with economic standards. To organize the banking system in such a way that it is sufficiently reliable is the competence of the Bank of Russia. The Bank of Russia regulates and controls banking activities, and therefore it is obliged to ensure that credit institutions exercise due diligence in dealing with borrowed funds from others. But besides the Bank of Russia, there are other state and non-state organizations that must or can protect the rights and interests of bank customers. Organizational guarantees can be classified according to those institutions that are charged with the responsibility of protecting persons using banking services. According to the separation of powers, this can be the organizational activity of the legislative, executive and judicial bodies. Further, one should distinguish between the organizational activities of state institutions and the institutions of civil society itself. And here it must be said that in Russia the activity of public organizations created by bank clients is insufficient, unlike in many foreign countries. For example, in France, in accordance with Art. 59 of the Banking Law established an advisory committee known as the “Users Committee”, which is intended to “study problems associated with the relationship between credit institutions and their clients and suggest necessary improvements.” It is interesting to note that the French Users Committee is composed on a parity basis of representatives of credit institutions and representatives of the clientele. We will talk about this in more detail when we talk about proposals for legal restructuring in the banking system, but for now, we note that the creation of public institutions is, as it were, supposed based on the very classification of guarantees. When accepting deposits from individuals and legal entities and conducting settlements, credit institutions are obliged to protect their depositors and clients from possible losses. Chapter III “Ensuring the stability of the banking system, protecting the rights and interests of depositors and creditors of credit institutions” of the Federal Law “On Banks and Banking Activities” provides for a number of norms aimed at ensuring the financial reliability of a credit institution. Much depends on how the monetary authorities observe the principles of civil society. The democratic nature of banking law (majority rule) is not implemented by itself. Calls for the protection of depositors and creditors are not enough here. The Bank of Russia is obliged to exercise prudential regulation and prudential supervision, including in order to ensure the interests of depositors and clients of credit institutions. b) financial; In order to ensure financial reliability, a credit institution is obliged to create reserves (funds), including for the depreciation of securities, the procedure for the formation and use of which is established by the Bank of Russia. The minimum amounts of reserves (funds) are established by the Bank of Russia. The amount of deductions to reserves (funds) from profit before taxation is established by federal tax laws. A credit institution is obliged to carry out the classification of assets, separating doubtful and bad debts, and create reserves (funds) to cover possible losses in the manner established by the Bank of Russia. A credit institution must comply with mandatory standards established in accordance with the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”. The numerical values of mandatory ratios are established by the Bank of Russia in accordance with the specified Federal Law. A credit institution is obliged to organize internal control that ensures an appropriate level of reliability corresponding to the nature and scale of the operations carried out (Article 24 of the mentioned Law). The bank is obliged to comply with the standard of required reserves deposited with the Bank of Russia, including the terms, volumes and types of funds raised. The procedure for depositing required reserves is determined by the Bank of Russia in accordance with the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”. The bank is required to have an account with the Bank of Russia for storing required reserves. The procedure for opening the said account and carrying out transactions on it is established by the Bank of Russia (Article 25 of the mentioned Law). The role of banking law in protecting interests and rights has a very specific implementation in all its regulatory and protective functions, banking law must ensure the protection of customers and depositors through the mechanisms provided for in the law or in by-laws adopted on its basis, which may include deposit insurance schemes , reserve requirements and other means. The need to maintain the confidence of bank customers is so essential that in connection with this, in many countries a financial deposit insurance mechanism has been created along the lines of the US Federal Deposit Insurance Corporation. This mechanism has some differences in different countries, but the main thing is that it exists. For example, in France, when the position of the credit institution justifies it, the Governor of the Bank of France may, in accordance with Art. 52 of the Banking Law, organize a competition with the participation of all credit institutions in order to take the necessary measures to protect the interests of depositors and third parties, maintain the normal functioning of the banking system and preserve its reputation. The Bank of Russia is obliged to ensure that guarantees are created for the return of deposits of individuals and legal entities. The deposit insurance system in Russia has not yet been created. The only financial source of possible compensation for the losses of depositors and creditors may be the mandatory reserve fund, which is returned to the credit institution from the Bank of Russia after its license is revoked and a liquidation commission is created. However, this cannot replace the deposit insurance system. Considering the situation with the protection of deposits, it is difficult to agree with the position that it is possible to do without the mandatory creation of reserves using other means. The legal regulation of required reserve funds in Russia is contradictory. Within the meaning of the Federal Law “On Banks and Banking Activities” (and not only within the meaning, if you look at the title of Chapter III, which contains the requirement to create funds: “Ensuring the stability of the banking system, protecting the rights and interests of depositors and creditors of credit institutions”) , the required reserve fund in Russia should be created to protect the rights and interests of depositors and creditors. The Law does not mention any multiplier, or limiting emissions, or limiting the issuance of loans by banks. The depositor reads the Federal Law “On Banks and Banking Activities”, which states that funds are created to protect his interests and rights. But he, as a rule, is not knowledgeable about how this issue is regulated by the regulations of the Bank of Russia itself. The regulations of the Bank of Russia provide for a different goal: a mandatory reserve fund is created primarily to limit the lending capabilities of a commercial bank. If this had been stated in the Federal Law “On Banks and Banking Activities”, then the depositor would not be so sure that he was not at risk. c) informational; It is known what role information plays in the financial and banking market. There are many reasons. If we talk about the prerequisites for the value that information acquires in the banking system, then in the origins it all starts with the essence of money. One of the functions of money, as already mentioned, is information about their value. With this function at the level of the banking services market, in one way or another, all the functions of institutions that collect, analyze, process and provide relevant banking information for use are connected. For example, this may be information about the financial position of a particular bank. Such and other information is necessary for clients of credit institutions. Having information about the bank and banking activities, the client can operate in the conditions of general competition to his advantage. By engaging in banking, he essentially gets the opportunity to predict the development of his mini-monetary system in other monetary systems. In other words, he foresees an increase in the value of a particular amount of money or, conversely, a possible fall in this value. In this sense, while receiving profit and income from an investment, he must pay for the collected and analyzed information, for the market forecast that has brought him or can still bring profit in the form of monetary interest. The rentier must pay for information that generates income for him. Naturally, a small client, a small investor cannot do this. But small investors are the bulk of all investors. This is the first thing. Secondly, banks play a specific role in the economy. In this sense, their activities are public. Therefore, all banking clients should be provided with standard information collected by public institutions. The central bank is just such a public institution. But in this area of relationships there are many difficulties. Firstly, there is the problem of competition, commercial and banking secrecy. In this regard, much depends on banking legislation and the practice of its application. Unfortunately, this practice suffers from disadvantages. Objectively existing problems with banking secrecy sometimes take on the opposite meaning - banking and commercial secrets are used as a cover for abuse. This will be discussed further in relation to the consideration of the issue of banking supervision by the Bank of Russia, the serious shortcomings of this supervision and how it needs to be improved (Shevchuk D.A. Fundamentals of Banking. - Rostov-on-Don: Phoenix, 2006). Secondly, there is the problem of the reliability of financial and banking information. As already mentioned, the economy in its causal characteristics can be rational, irrational and mixed. Most often, it is dominated by irrational moments, especially during crises. Therefore, there is always a risk of false information about banks. Naturally, this risk is greater where there is more corruption, crime, etc. Thirdly, there is the problem of asymmetric information. It is precisely the depositor who has the least ability to independently collect and analyze banking information. In conditions when the banking system is not debugged, the risk of informational delusion always increases. In Russia, given the specifics of the economy, the role of information support for depositors is becoming increasingly important. This is clearly seen in the example of deposit insurance. In Art. 840 “Ensuring the return of deposits” of the Civil Code of the Russian Federation provides the following: “1. Banks are obliged to ensure the return of citizens’ deposits through compulsory insurance, and in cases provided for by law - in other ways. Return of citizens’ deposits by a bank whose authorized capital contains more than fifty percent of shares or participation interests have the Russian Federation and (or) constituent entities of the Russian Federation, as well as municipalities, in addition, is guaranteed by their subsidiary liability for the depositor’s claims to the bank in the manner prescribed by Article 399 of this Code. 2. Methods for the bank to ensure the return of deposits of legal entities are determined by the bank deposit agreement. 3. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit. 4. If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in case of loss of security or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount determined in accordance with clause 1 Art. 809 of this Code, and indemnification of the caused losses". Banking law provides a list of information that should be available to depositors and all other persons using the services of credit institutions. The Law “On Banks and Banking Activities” states that banks are required to provide the information necessary for the depositor to make the right choice. The Bank of Russia has not issued any instructions on this issue. Meanwhile, it would be advisable to regulate the mandatory list of information in the bank's office, presented for public viewing. This should be information about the founders, about the authorized fund, about the reserve fund, about the balance sheet, about profits and losses, about membership in the deposit insurance fund. If the bank does not participate in the deposit insurance fund, then information about this should be presented in the list in the same way. d) legal. In order for the protection of depositors and creditors to become real, laws, other normative acts and, most importantly, mechanisms for their implementation must be created. First, it is the law itself. It should not be contradictory in its form. To date, such contradictions exist, and there are quite a lot of them. There are even more contradictions between the legislation and the regulations of the Bank of Russia - they have already been discussed and will be discussed further in relation to specific issues of banking regulation and supervision. Secondly, it is the law enforcement activity of regulatory and law enforcement agencies. There are many unresolved issues here. The example of bank depositors is the most illustrative. The judiciary was physically unable to deal with the huge number of cases. Sanctions will not help matters here. This situation can be overcome only if the procedure for the operation of the entire system of credit institutions as such is regulated. In parallel, it is necessary to provide for the personification of the civil liability of founders (participants) and managers, through whose fault the financial situation of a credit institution has deteriorated. Various publications have repeatedly raised the issue of improving the legal protection of banking customers. It is interesting to note the reaction of the Bank of Russia to the appeal of the Association of Russian Banks, whose representatives proposed a number of measures to strengthen the legal protection of deposits. Thus, in particular, it was proposed that the Bank of Russia accrue interest on the funds of the mandatory reserve fund. In our opinion, if civil law provides that you have to pay for the use of other people's money, then this equally applies to all entities, including the Bank of Russia. Equality of all before the law and justice. Topic 6. LEGAL STATUS OF A CREDIT ORGANIZATION The concept and features of a credit organization The legal status of credit institutions is regulated by the norms of various branches of law: ▪ in general aspects, such as the legal status of a business entity - by the norms of constitutional law, ▪ directly, as the legal status of the subject, civil law relations - the norms of civil law; ▪ as the legal status of the subject of banking relations, that is, the subject of relations with the Bank of Russia, regarding compliance and execution of the rules for conducting banking operations - the norms of banking law. The Constitution of the Russian Federation and other federal laws provide for certain guarantees of the legal status of a credit institution. For example, articles 8, 34, 35 of the Constitution of the Russian Federation provide guarantees against illegal competition, against monopolization. It is important that these guarantees really work in the banking system. We will return to this issue in chapter IX of this book. It is necessary to distinguish between the legal status and the legal status of a credit institution. The general legal status (legal capacity, rights and obligations) is the same for all Russian credit institutions. The legal status of all is different, depending on what civil law relations the credit institution enters into. They may be more or, conversely, less. Here everything depends on the entrepreneurial activity of the credit institution, on how effective its banking business is. However, appropriate guarantees must be created here as well. Their meaning is to create equal conditions for the entrepreneurial activity of all subjects in the country's economy. To do this, the law should provide for equal business conditions, on the one hand, and more flexible forms of this business, on the other. In the meantime, the Federal Law “On Banks and Banking Activities,” in our opinion, provides a primitive set of opportunities for choosing organizational and legal forms of banking entrepreneurship. If we analyze only the dogma of banking law, it turns out that banking legislation provides only for universal banks and other credit organizations. In some cases, the law does not contain signs of such a thing as a state bank, although in practice some banks, in our opinion, are state-owned. There are no concepts of a specialized and regional bank in the legislation. In this sense, the set of statuses is very uniform (Shevchuk D.A.). This might be appropriate for a stable economy, but not for Russia's transitional economy. In Russia, there are still problems with legality in the banking system; it would be useful to use a variety of organizational and legal forms and types of credit institutions. Moreover, these should not just be economic or financial concepts, but clear definitions enshrined in law. So far there is no such clarity. Therefore, a bank may, for example, be called a savings bank, but be no different from other banks other than the name. In other countries, these issues are resolved unambiguously. For example, the Italian banking system provides for state-owned banks. Or, for example, let's look at the Swiss banking system. This is a flexible and extensive system. It has large banks, private banking houses, regional banks, savings banks, and loan banks. There are 29 cantonal banks in Switzerland (the so-called “house banks” of the cantons, which operate specifically and primarily in the canton). All of them are state-owned: the state is responsible for their obligations, and management is carried out with the participation of local governments. They are universal. The same applies to savings banks and regional banks. This is a very large and heterogeneous group. Some of these institutions are owned by the state, and some are organized in the form of partnerships. However, regardless of the form of ownership, the target market here is local. The largest (more than 1000) is a group of loan banks organized according to the German system. These cash desks issue loans only to their members. One could give other examples of the fact that in many modern foreign countries there is an extensive banking system and the current legislation provides for various types of banks, and not just their general legal status. However, let us now turn to the analysis of the dogma of banking law. A credit organization is a concept that is common to banks and non-bank credit organizations. A bank is a type of lending institution. The Federal Law “On Banks and Banking Activities” (Article 1) provides the definition of a credit organization: “A credit organization is a legal entity that, in order to make profit as the main purpose of its activities, is based on a special permit (license) of the Central Bank of the Russian Federation (Bank of Russia ) has the right to carry out banking operations provided for by this Federal Law. A credit organization is formed on the basis of any form of ownership as a business company." This definition contains several significant features. Firstly, a credit institution is a legal entity. In paragraph 1 of Art. 48 of the Civil Code of the Russian Federation states: “A legal entity is an organization that has separate property in ownership, economic control or operational management and is liable for its obligations with this property, can acquire and exercise property and personal non-property rights in its own name, bear obligations, be a plaintiff and defendant in court. Legal entities must have an independent balance sheet or estimate." Since the Federal Law says that a credit institution is a business entity that is formed on the basis of any form of ownership, then, therefore, its property as a legal entity cannot belong to it otherwise than on the basis of ownership. The fundamental understanding of a credit organization as a legal entity and a number of financial issues related to this understanding is based on the provision enshrined in paragraph 2 of Art. 48 of the Civil Code of the Russian Federation, which states that “in connection with the formation of the property of a legal entity, its founders (participants) may have obligatory rights in relation to this legal entity or real rights to its property. To legal entities in respect of which their participants have obligatory rights include business partnerships and societies, production and consumer cooperatives..." Due to the fact that a credit organization can only be created as a business company, then, consequently, its participants have only liability rights in relation to it. We shall return to this question of the rights of obligations when we consider the question of the statutory fund of a credit institution. According to Art. 7 of the Federal Law, a credit institution must have a name. A credit institution has a firm (full official) name in Russian, may have a name in another language of the peoples of the Russian Federation, an abbreviated name and a name in a foreign language. The credit institution has a seal with its trade name. The corporate name of a credit organization must contain an indication of the nature of the activities of this legal entity through the use of the words “bank” or “non-bank credit organization,” as well as an indication of its organizational and legal form. When considering an application for registration of a credit organization, the Bank of Russia is obliged to prohibit the use of the name of the credit organization if the proposed name is already contained in the Book of State Registration of Credit Organizations. The use of the words “Russia”, “Russian Federation”, “state”, “federal” and “central”, and words and phrases derived from them in the name of a credit organization is permitted in the manner established by legislative acts of the Russian Federation. No legal entity in the Russian Federation, with the exception of one that has received a license to carry out banking operations from the Bank of Russia, may use in its name the words “bank”, “Credit organization” or otherwise indicate that this Legal entity has the right to carry out banking operations. operations. A credit organization must have a charter. A credit organization has a charter approved in the manner prescribed by federal laws. In accordance with the requirements of the Federal Law, the charter of a credit organization must contain: 1) corporate (full official) name, as well as all other names established by federal law; 2) an indication of the organizational and legal form; 3) information about the location (postal address) of management bodies and separate divisions; 4) a list of banking operations and transactions carried out in accordance with Art. 5 of the Federal Law "On Banks and Banking Activities"; 5) information on the amount of authorized capital; 6) information about the system of management bodies, including executive bodies, and internal control bodies, about the procedure for their formation and their powers; 7) other information provided for by federal laws for the charters of legal entities of the specified organizational and legal form. A credit institution is obliged to register with the Bank of Russia all amendments and additions it makes to its charter. The Bank of Russia, within a month from the date of submission of all duly executed documents, makes a decision on registration of amendments and additions to the charter of a credit institution. Secondly, the main goal of a credit organization is to make a profit. A credit organization is a commercial organization. In paragraph 1 of Art. 50 of the Civil Code of the Russian Federation states that "legal entities may be organizations pursuing profit-making as the main goal of their activities (commercial organizations) or not having profit-making as such a goal and not distributing the profits received among participants (non-profit organizations)". In paragraph 2 of Art. 50 of the Civil Code of the Russian Federation provides that "legal entities that are commercial organizations may be created in the form of business partnerships and companies, production cooperatives, state and municipal unitary enterprises." A legal entity must be registered with the appropriate government agency. Credit institutions are registered by the Bank of Russia. Thirdly, the credit institution is endowed with special legal capacity. This means that it operates on the basis of its charter and permission (license) issued by the Bank of Russia. Legal capacity is the legal capacity of a person to acquire certain rights and obligations. For a credit institution, this is the special legal capacity of a legal entity. Special legal capacity means that a legal entity as a business entity can carry out only those activities that are provided for by the charter. Consequently, a legal entity can be a participant only in those legal relations that are due to these types of activities. The legislation provides that certain types of business activities are legal only if they are carried out on the basis of an appropriate license. Credit institutions operate on the basis of licenses issued by the Bank of Russia. Fourthly, the credit institution carries out banking operations, which, as stated in Art. 1 of the Federal Law are provided for in the same Federal Law. Note that Art. 1 of the Federal Law does not use the term "transactions", while Art. 5 of the same Law, which is called "Banking Operations and Other Transactions of a Credit Organization", specifies not only a list of banking operations, but also a list of transactions. The list of transactions is not closed, since in addition to the specified list, a credit institution, as stated in the same article, can make other transactions. Fifthly, a credit organization can be created and operate only in the form of a business entity. According to the civil legislation, only a joint-stock company, a limited liability company and an additional liability company can be the organizational and legal form of a credit institution. This means that the founders of a credit organization cannot use other organizational and legal forms of institutions, cooperatives and other organizational and legal forms in the process of its creation, except as a business company. Bank - a credit institution that has the exclusive right to carry out the following banking operations in aggregate: attraction of funds from individuals and legal entities to deposits, placement of these funds on its own behalf and at its own expense on the terms of repayment, payment, urgency, opening and maintaining bank accounts of individuals and legal entities. Non-bank credit institution - a credit institution that has the right to carry out certain banking operations provided for by federal law. Permissible combinations of banking operations for non-bank credit institutions are established by the Bank of Russia. According to the current banking law, there are two types of non-bank credit organizations: - settlement non-profit organizations; - collection services. [20] Settlement non-profit organizations have the right to carry out the following banking operations: 1) opening and maintaining bank accounts of legal entities; 2) carrying out settlements on behalf of legal entities, including correspondent banks, on their bank accounts. Depending on the functional purpose, NPOs can provide services to legal entities, including credit institutions, in the interbank, foreign exchange and securities markets, make settlements with plastic cards, collect funds, bills, payment and settlement documents, and provide cash services to legal entities. , operations for the purchase and sale of foreign currency in a non-cash form, as well as transactions provided for by their charters, registered in the manner established by the Instruction of the Bank of Russia dated July 23, 1998 No. 75-I. NCOs are not entitled to attract funds from legal entities and individuals in deposits for the purpose of placing them on their own behalf and at their own expense. Settlement NBCOs are entitled to provide loans to clients participating in settlements to complete settlements on completed transactions in the manner determined by the Model Regulations of the Bank of Russia on the activities of the relevant settlement NBCOs and (or) their charter, on the terms of repayment, urgency, payment, security within the limits established by N6 regulations , H16. At the same time, the provision of loans at the expense of reserves (funds) specially created by the participants in the calculations is carried out within the framework of the powers granted by the participants. Settlement NBCOs are entitled to place temporarily free cash only in the form of investments in securities of the Government of the Russian Federation classified by the Bank of Russia as investments with zero risk, and also to keep them on correspondent accounts with the Bank of Russia and in credit institutions engaged in settlement activities. Within the limits granted by the license of the Bank of Russia, settlement NCOs are entitled to carry out operations provided for by their charter in national (Russian rubles) and foreign currencies. Collection organizations, on the basis of a license issued by the Bank of Russia, are entitled to carry out the following banking operation: collection of funds, bills of exchange, payment and settlement documents. These operations must be carried out in accordance with the current instructions of the Bank of Russia on these issues. [21] Since the activities of cash collection organizations are mainly associated with the emergence of operational risks, no requirements for prudential regulation, including the minimum amount of capital, are established for cash collection organizations. Collection of funds, bills of exchange, payment and settlement documents must be provided with reliable protection. Security can be carried out by an organization specializing in the provision of such services, on the basis of an appropriate agreement with a non-bank credit institution, or by the non-bank credit institution's own security service. In the event that security will be carried out by its own security service, a non-bank credit institution, after registering with the Bank of Russia, must agree on the charter of the security service in the internal affairs bodies at its location. In order to obtain a license to carry out collection operations, such a non-bank credit institution must submit to the territorial office of the Bank of Russia notarized copies of the following documents: the charter of the security service agreed with the internal affairs bodies; permission of the internal affairs body for the storage and use of service weapons; documents confirming the ownership or lease of cars. If the collection protection will be carried out by an organization specializing in security activities, such a non-bank credit organization, in order to obtain a license to carry out collection operations, must submit to the territorial office of the Bank of Russia notarized copies of the documents of the organization specializing in security activities: certificates of state registration; charter; licenses for security activities; permission of the internal affairs body for the storage and use of service weapons; a security agreement with this organization and documents of the collection organization confirming the right of ownership or lease for cars. The share of non-banking organizations in the banking system is very insignificant. Meanwhile, non-bank credit organizations could more successfully resolve some issues. Chief among them is the question of calculations. The Bank of Russia, unfortunately, was not able to solve the task set before it of creating a global all-Russian electronic settlement system that could carry out settlements throughout the country in real time. It was assumed that all these problems would be solved with the help of satellite communications. But all this activity has not received development. Whereas the problem of settlements could be solved more successfully and with less risk for clients by non-bank credit institutions. Russian banks interact with credit organizations of foreign countries, so the law regulates, firstly, these relationships, secondly, defines the concept of a foreign bank under Russian law, and, thirdly, regulates foreign investment. The cited Federal Law says: "A foreign bank is a bank recognized as such under the laws of a foreign state in whose territory it is registered." Legal capacity of a credit organization The legal capacity of a credit institution is a special case of the legal capacity of a legal entity. In Art. 49 of the Civil Code of the Russian Federation states that a legal entity may have civil rights corresponding to the objectives of the activity provided for in its constituent documents, and bear the obligations associated with this activity. Commercial organizations, with the exception of unitary enterprises and other types of organizations provided for by law, may have civil rights and bear civil obligations necessary to carry out any type of activity not prohibited by law. A legal entity may engage in certain types of activities, the list of which is determined by law, only on the basis of a special permit (license). A legal entity may be restricted in its rights only in cases and in the manner prescribed by law. The decision to restrict rights may be appealed by a legal entity to the court. The legal capacity of a legal entity arises at the time of its creation (clause 2, article 51 of the Civil Code of the Russian Federation) and terminates at the time of completion of its liquidation (clause 8, article 63 of the Civil Code of the Russian Federation). The right of a legal entity to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided by law or other legal acts. Federal Law "On Banks and Banking" in Art. 5 "Banking operations and other transactions of a credit institution" refers to banking operations: 1) attraction of funds of individuals and legal entities in deposits (on demand and for a certain period); 2) placement of the raised funds specified in paragraph 1 of part one of this article on one’s own behalf and at one’s own expense; [22] 3) opening and maintaining bank accounts of individuals and legal entities; 4) making settlements on behalf of individuals and legal entities, including correspondent banks, on their bank accounts; 5) collection of funds, bills of exchange, payment and settlement documents and cash services for individuals and legal entities; 6) purchase and sale of foreign currency in cash and non-cash forms; 7) attraction to deposits and placement of precious metals; 8) issuance of bank guarantees; 9) making money transfers on behalf of individuals without opening bank accounts (except for postal transfers). [23] In addition to the listed banking operations, a credit institution is entitled to carry out the following transactions: 1) issuance of guarantees for third parties, providing for the fulfillment of obligations in cash; 2) acquisition of the right to demand from third parties the fulfillment of obligations in cash; 3) trust management of funds and other property under an agreement with individuals and legal entities; [24] 4) carrying out transactions with precious metals and precious stones in accordance with the legislation of the Russian Federation; 5) leasing to individuals and legal entities special premises or safes located in them for storing documents and valuables; 6) leasing operations; 7) provision of consulting and information services. The credit organization is entitled to carry out other transactions in accordance with the legislation of the Russian Federation. All banking operations and other transactions are carried out in rubles, and in the presence of an appropriate license from the Bank of Russia - in foreign currency. The rules for conducting banking operations, including the rules for their material and technical support, are established by the Bank of Russia in accordance with federal laws. The rules for authorized banks to carry out operations and transactions with foreign currency and with securities in foreign currency without obtaining separate permits (licenses) for conducting foreign exchange transactions related to the movement of capital are established by Ordinance of the Bank of Russia dated March 27, 1998 No. 193-U. A credit organization is prohibited from engaging in production, trade and insurance activities. Federal Law "On Banks and Banking" in Art. 6 "The activities of a credit institution in the securities market" explains that, in accordance with the license of the Bank of Russia for banking operations, the bank has the right to issue, purchase, sell, record, store and other operations with securities that perform the functions of a payment document, with securities , confirming the attraction of funds to deposits and bank accounts, with other securities, the implementation of transactions with which does not require a special license in accordance with federal laws, and is also entitled to exercise trust management of these securities under an agreement with individuals and legal entities. A credit organization has the right to carry out professional activities in the securities market in accordance with federal laws. [25] Authorized capital and other funds of a credit organization The authorized capital of a credit organization is made up of the amount of contributions of its participants and determines the minimum amount of property that guarantees the interests of its creditors. This definition is contained in Art. 11 of the Federal Law "On Banks and Banking". Depending on the organizational and legal form of the credit institution, this may be share capital, in which the authorized capital consists of a certain number of shares divided between the founders (participants) of the economic company, or share capital denominated in shares. Bank of Russia Instruction No. 23-I dated July 1998, 75 provides that a credit institution must declare and agree with a Bank of Russia territorial office a reduction in its charter capital in accordance with the procedure established by this Instruction if, at the end of the second and each subsequent financial year, the value of net assets (own funds ) of the credit institution will be less than its authorized capital. The decision to reduce the charter capital of a credit institution to the amount of its net assets (own funds) is taken at the annual (ordinary) general meeting of participants in the credit institution. The own funds of a credit institution, according to Bank of Russia Instruction No. 1 of October 1997, 1, include authorized capital, funds and profit. [26] The Bank of Russia sets the minimum authorized capital for newly registered credit institutions. The standard for the minimum authorized capital may be set depending on the type of credit institution. The federal law provides that the decision of the Bank of Russia to change the minimum amount of the authorized capital shall enter into force no earlier than 90 days after the day of its official publication. For newly registered credit institutions, the Bank of Russia applies the minimum authorized capital requirement that is in force on the date of submission of documents for registration and obtaining a license. The Bank of Russia does not have the right to require previously registered credit institutions to change their authorized capital. Chapter 4 of Instructions of the Central Bank of July 23, 1998 No. 75-I provides that the minimum amount of authorized capital for newly created credit institutions is established by the Bank of Russia in accordance with the requirements of the Federal Law "On Banks and Banking Activity". It also says that the authorized capital of a credit institution created in the form of a joint-stock company is made up of the nominal value of its shares acquired by the founders of the credit institution. The authorized capital of a credit institution set up in the form of a limited liability company or an additional liability company is made up of the nominal value of the shares of its founders. The Bank of Russia sets the maximum amount of the non-monetary part in the authorized capital of credit institutions. Instruction No. 75 provides that contributions to the charter capital of a credit institution may be in the form of: ▪ funds in the currency of the Russian Federation. As already mentioned, the Central Bank's Instruction No. 30-U dated September 1998, 365 allows payment of contributions to the authorized capital of credit institutions in foreign currency; ▪ tangible assets (bank building or premises in which the credit institution is located, with the exception of unfinished construction). Tangible assets must be assessed and reflected in the balance sheet of the credit institution in the currency of the Russian Federation. CBR Directive No. 31-U dated December 1998, 474 established that, subject to the permission of the Board of Directors of the Bank of Russia, the participants (shareholders) of a credit institution have the right to pay for the authorized capital of a credit institution being created and to increase the authorized capital of an existing credit institution with other non-monetary assets belonging to them. funds or bank building (premises). The maximum size and composition of such assets are determined by the Board of Directors of the Bank of Russia. Instruction No. 75 of the Bank of Russia also provides for the following points. ▪ A contribution cannot be made in the form of property if the right to dispose of it is limited in accordance with federal legislation or previously concluded agreements. ▪ The monetary value of tangible assets contributed to pay for part of the authorized capital of a credit organization upon its creation is approved by the general meeting of founders. ▪ Monetary valuation of tangible assets contributed to pay for part of the authorized capital of a credit organization operating in the form of a joint stock company is carried out by the board of directors of the credit organization. ▪ In cases provided for by federal laws, tangible assets contributed to pay for part of the authorized capital of a credit organization are valued by an independent appraiser. ▪ Cash and tangible assets contributed to the authorized capital of a credit organization in the prescribed manner become its property. ▪ The maximum size (standard) of the non-monetary part of the authorized capital of a credit organization being created should not exceed 20 percent. As already mentioned, in accordance with the instructions of the Bank of Russia dated June 8, 1999 No. 571-U, federal loan bonds with a constant coupon income can be used to pay for shares (shares) of created and existing credit organizations. The maximum size of the portion of the authorized capital of a credit organization paid with bonds may be no more than 25 percent of the total authorized capital of the credit organization. ▪ If tangible assets are contributed to the authorized capital of a credit organization, documents must be submitted confirming the right of the founders (participants) to contribute them to the authorized capital of the credit organization. It is prohibited to use borrowed funds to form the charter capital of a credit institution, except as otherwise provided by federal laws. Funds from the federal budget and state off-budget funds, free cash and other objects of property administered by federal government bodies cannot be used to form the authorized capital of a credit institution, except as otherwise provided by federal laws. The funds of the budgets of the constituent entities of the Russian Federation, local budgets, free cash and other objects of property held by state authorities of the constituent entities of the Russian Federation and local self-government bodies may be used to form the authorized capital of a credit institution on the basis of a legislative act of a constituent entity of the Russian Federation or a decision local self-government body in the manner prescribed by federal laws. The authorized capital guarantees the claims of creditors. However, the specificity of a credit institution lies in the fact that it includes in circulation not only its own, but also other people's money. Therefore, a certain guarantee of reliability, liquidity and solvency is its own funds. In Art. 64 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" provides that the maximum amount of large credit risks is set as a percentage of the total amount of large risks and the credit institution's own funds. Large credit risk is the volume of loans, guarantees and guarantees in favor of one client in the amount of more than 5 percent of the credit institution's own funds. The maximum amount of major credit risks may not exceed 25 percent of a credit institution's own funds. According to Art. 73 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", the Bank of Russia establishes methods for determining its own funds, assets, liabilities and the amount of risk on assets for each of the standards, taking into account international standards and consultations with banks, banking associations and unions. The Bank of Russia has the right to establish differentiated standards and methods for their calculation by types of banks and other credit institutions. The Bank of Russia officially announces the forthcoming change in the standards and methods for their calculation no later than one month before they are put into effect. Mandatory economic standards for the activities of banks Established by the Instruction of the Bank of Russia dated October 1, 1997 No. 1-I "On the procedure for regulating the activities of banks." Taking into account this norm, as well as the relevant norms of the Federal Law "On Banks and Banking Activities", which stipulate the requirements for compliance with the standards, it is necessary to consider the problem of determining the own funds of a credit institution. The problem of determining the own funds of a credit institution has legal, financial and accounting aspects. It has legal significance insofar as there is a connection with the authorized capital. The concept of authorized capital in a certain way correlates with the concept of "main and additional capital". In addition, it must be borne in mind that if, say, authorized capital cannot be formed with borrowed funds (in accordance with Article 11 of the Federal Law "On Banks and Banking Activities"), then additional capital under certain conditions is possible. This circumstance is essential for understanding the mechanisms of formation of the capital of a credit institution and its assessment not only from the point of view of reliability, but also from the point of view of legitimacy. In the Regulations of the Bank of Russia dated June 1, 1998 No. 31-P “On the methodology for calculating the own funds (capital) of credit institutions” [27] (as amended by the Directives of the Bank of Russia dated June 15, 1999 No. 576-U, dated February 4, 1999 year No. 496-U and dated December 31, 1998 No. 473-U) it is said: “The amount of equity (capital) of credit institutions in accordance with the methodology established by the Bank of Russia is determined as the sum of fixed capital and additional capital.” [28] It is interesting to note that the additional funds include subordinated loans. [29] Acquisition as a result of one or several transactions by one legal entity or individual, or by a group of legal entities and (or) individuals linked by an agreement, or by a group of legal entities that are subsidiaries or affiliates of each other, more than 5 percent of shares (shares) credit institution requires notification of the Bank of Russia, more than 20 percent - prior consent of the Bank of Russia. The Bank of Russia not later than 30 days from the date of receipt of the application informs the applicant in writing about its decision - consent or refusal. Refusal must be motivated. If the Bank of Russia does not inform about the decision taken within the specified period, the transaction for the purchase and sale of shares (stakes) in a credit institution is considered resolved. The procedure for preliminary approval of the acquisition of more than 20 percent of the shares (shares) of a credit institution is established by the Instruction of the Central Bank of July 23, 1998 No. 75-I, which provides for the following: 1. Acquisition as a result of one or several transactions by one acquirer, or by a group of acquirers interconnected by an agreement, or by a group of acquirers who are subsidiaries or dependents of each other (Articles 105 and 106 of the Civil Code of the Russian Federation), more than 20 percent of the shares ( shares) of a credit institution must be previously agreed with the Bank of RUSSIA. At the same time, prior consent must be obtained for each acquisition of a share of more than 20 percent of the authorized capital of a credit institution (in the letter of the Central Bank of July 28, 1999 No. shares) of a credit institution due to a decrease in its authorized capital. In this case, no additional acquisition of shares (shares) as a result of new transactions takes place, and therefore no prior approval from the Bank of Russia is required). 2. The legal entities mentioned above have the right to acquire more than 20 percent of the shares (shares) of an operating credit institution (including acquisition on the secondary market) if they have a stable financial position and have been operating for three years. 3. A transaction that results in the acquirer owning more than 20 percent of the shares (shares) of a credit institution without prior consent from the Bank of Russia is invalid. 4. The obligation to obtain prior consent from the Bank of Russia for the acquisition of more than 20 percent of the shares (shares) of a credit institution lies with the acquirer (purchasers linked by an agreement, being subsidiaries or dependents of each other (Articles 105 and 106 of the Civil Code of the Russian Federation) or A request for prior consent from the Bank of Russia for such an acquisition of shares (shares) in a credit institution shall be submitted to the territorial office of the Bank of Russia that supervises the activities of the credit institution, the shares (shares) of which are being acquired by the acquirer (one of the related purchasers) or an authorized person. The concepts of subsidiary and dependent companies are given in Art. 105 of the Civil Code of the Russian Federation, which provides that a business company is recognized as a subsidiary, if another (main) business company or partnership, by virtue of its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the ability to determine decisions made by such society. A subsidiary company is not liable for the debts of the main company (partnership). The parent company (partnership), which has the right to give the subsidiary, including under an agreement with it, instructions binding on it, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions. In case of insolvency (bankruptcy) of a subsidiary due to the fault of the main company (partnership), the latter bears subsidiary liability for its Debts. Participants (shareholders) of a subsidiary company have the right to demand compensation from the main company (partnership) for losses caused through its fault to the subsidiary company, unless otherwise provided by laws on business companies. According to Art. 106 of the Civil Code of the Russian Federation, a business company is recognized as dependent if another (predominant, participating) company has more than 20 percent of the voting shares of a joint-stock company or 20 percent of the authorized capital of a limited liability company. A business company that has acquired more than 20 percent of the voting shares of a joint-stock company or 20 percent of the authorized capital of a limited liability company is obliged to immediately publish information about this in the manner prescribed by laws on business companies. The limits of mutual participation of economic companies in each other's charter capitals and the number of votes that one of such companies can use at a general meeting of participants or shareholders of another company are determined by law. The application for the possibility of acquiring more than 20 percent of shares (shares) must indicate the absence or existence of a relationship between the acquirers of shares (shares) and other acquirers and (or) owners of shares (shares) of the credit institution, as well as the nature of such a relationship, agreement, mutual participation in each other's capital or any other form of connection. 5. The possibility of issuing prior consent for the acquisition of more than 20 percent of the shares (shares) of a credit institution is considered by the territorial office of the Bank of Russia on the basis of the following documents attached to the application: ▪ notarized copies of documents confirming the state registration of legal entities (represented by the founders of a credit organization acquiring more than 20 percent of the shares (shares) of legal entities); ▪ notarized copies of the constituent documents of the legal entity - the acquirer; [thirty] ▪ audit reports on the reliability of the financial statements of acquirers - legal entities, with the attachment of balance sheets and profit and loss statements for the last three years of activity, balance sheets as of the last reporting date with marks from the State Tax Service of the Russian Federation (now the Ministry of the Russian Federation for Taxes and Duties ); ▪ confirmation from the State Tax Service of the Russian Federation that there are no debts on obligations to the federal budget, the budget of a constituent entity of the Russian Federation and the local budget; ▪ calculations of the net assets (equity) indicator and the current liquidity ratio (when determining the adequacy of the equity of a person acquiring more than 20 percent of shares (shares) when creating a credit organization or increasing its authorized capital, shares (shares) in the part that are cross-border are not taken into account ownership with another participant of a credit organization (mutual participation in the authorized capital), as well as shares (shares) in the part that is cross-owned by the participant and the credit organization (mutual participation in the authorized capital); ▪ a list of participants of a legal entity - the acquirer of shares (shares) of a credit institution (open joint-stock companies and closed joint-stock companies with more than 50 shareholders present a list of their shareholders owning more than 5 percent of the shares); ▪ conclusion of the federal antimonopoly authority on compliance with antimonopoly rules. The territorial branch of the Bank of Russia considers the submitted documents within thirty days from the date of their receipt and, taking into account the financial position of the acquirer(s) of the shares (shares) of the credit institution (including the sufficiency of funds to pay for the share (shares) in the authorized capital of the credit institution), informs in writing the applicant about his decision - consent or refusal. The same provisions of Instruction No. 75-I apply when acquiring stakes (shares) in an operating credit institution (including acquisition on the secondary market). Regulation of the Central Bank of March 26, 1999 No. 72-P establishes that when an individual acquires shares (shares) in the authorized capital of a newly created credit institution or when acquiring more than 20 percent of the shares (shares) of an existing credit institution, the credit institution must submit to the territorial office of the Bank Russia, supervising its activities, documents necessary to verify the legality of paying the authorized capital of a credit institution at the expense of the specified individual and confirming his satisfactory financial position. The Bank of Russia has the right to refuse to give consent to a transaction for the sale of more than 20 percent of the shares (stakes) of a credit institution if it establishes an unsatisfactory financial position of the purchasers of shares (stakes), violates antimonopoly rules, and in other cases provided for by federal laws. Legal status of founders (participants) of a credit organization It is necessary to distinguish between the civil law and banking status of the founders, (participants) of a credit institution. The founders of the bank do not have the right to withdraw from the membership of the bank during the first three years from the date of its registration. The founders (participants) of a credit institution shall not have the right of ownership of the property and funds invested by them in the charter capital of the credit institution. They only have the right to claim. However, the Federal Law "On Limited Liability Companies" in Art. 22 provides that a member of the company has the right to pledge his share (part of the share) in the authorized capital of the company to another member of the company or, if this is not prohibited by the charter of the company, to a third party with the consent of the company by decision of the general meeting of members of the company, adopted by a majority vote of all members of the company, if the need for a larger number of votes to make such a decision is not provided for by the charter of the company. The votes of a company participant who intends to pledge his share (part of a share) are not taken into account when determining the voting results. In accordance with the general rules enshrined in paragraph 1 of Art. 336 of the Civil Code of the Russian Federation, any property, including property rights, can be pledged. The commented article deals specifically with the pledge of rights. This type of pledge is regulated by paragraph 3 of Art. 335, paragraph 2 of Art. 336 of the Civil Code, as well as the articles of Section IV ("Pledge of Rights") of the Law "On Pledge". From the commented article follows the possibility of a direct prohibition to pledge a share (part of a share) in the authorized capital of a company only to a third party. The general rule in the charter on the prohibition of pledge of a share (part of a share) does not apply to relations between participants who have the right to pledge their share. The commented article provides for a special procedure for making a decision on the pledge of a share (part of a share) at a general meeting of shareholders and by a qualified majority. Violation of one and (or) another requirement equally entails the recognition of the corresponding decision as invalid. A credit organization operating in the form of a limited liability company is obliged to pay the participant who has submitted an application for withdrawal from the credit organization the actual value of his share or, with the consent of the participant in the credit organization, to give him property of the same value in kind. The actual value of the share to be paid to the participant withdrawing from the credit institution is determined on the basis of the financial statements of the company for the year during which the application for withdrawal from the credit institution was submitted, and corresponds to the part of the value of the credit institution’s own funds proportional to the nominal value of the credit organization of the participant in the authorized capital. In order to determine the actual value of the share to be paid to a participant withdrawing from the credit institution, the credit institution's own funds are calculated taking into account the nominal value of the participants' shares (balance sheet account No. payment of the actual value of the shares to which should be carried out at the end of the reporting year. The credit institution is obliged to pay the participant withdrawing from it the actual value of the share or, with the consent of the member of the credit institution, to give him property of the same value in kind within six months from the end of the financial year in which the application for withdrawal from the credit institution was submitted, unless a shorter period stipulated by the charter of the credit institution. If a member of a credit institution has not fully paid his contribution to the charter capital, then the credit institution shall be obliged to pay him the actual value of his share, proportional to the paid part of the contribution. If a participant withdraws from the credit institution, his share is transferred to the credit institution from the moment of filing an application for withdrawal from the credit institution, with the share reflected in the credit institution's accounting in its nominal terms. Payment of contributions to the authorized capital of credit institutions in foreign currency Starting from December 1, 1997, and until September 30, 1998, there was a ban on the formation of the authorized capital of a credit institution in foreign currency. Instruction of the Bank of Russia dated September 26, 1997 No. 523 “On the procedure for the formation of the authorized capital of a credit organization in the currency of the Russian Federation” stated that in order to ensure a uniform procedure for the formation of the authorized capital of credit organizations in the currency of the Russian Federation, starting from December 1, 1997, newly created credit organizations are prohibited from using foreign currency when making payments for the payment of shares in their authorized capital. Operating credit organizations that increase their authorized capital after December 1, 1997 due to additional contributions from participants or changes in the par value of shares are required to make payments for payment of authorized capital only in the currency of the Russian Federation. [31] However, after the crisis on August 17, 1998, the situation changed, and the Bank of Russia lifted this ban. Instruction of the Central Bank of September 30, 1998 No. 365-U “On the abolition of the ban on payment of contributions to the authorized capital of credit institutions in foreign currency” states that in accordance with the decision of the Board of Directors of the Bank of Russia, the Central Bank of the Russian Federation, pending special instructions, allows payment contributions to the authorized capital of credit institutions in foreign currency. Reflection of the authorized capital of credit institutions in accounting is carried out in the currency of the Russian Federation. [32] The procedure for paying the authorized capital in foreign currency is provided for by the Central Bank of Russia Directive No. 19-U dated March 1999, 513 “On the procedure for paying the authorized capital of credit institutions in foreign currency and reflecting the corresponding transactions in accounting accounts,” [33] which states that the founders (participants ) a credit organization - residents and non-residents - has the right to make full or partial payment of the authorized capital of created and operating credit organizations in foreign currency in non-cash or cash forms in the Procedure established by the legislation of the Russian Federation and the Cited Instruction. Payment for shares (stakes) of credit institutions in foreign currency in the manner established by the legislation of the Russian Federation and the cited Directive does not require residents to obtain permission from the Bank of Russia to carry out foreign exchange transactions related to the movement of capital. Legal entities cannot pay for shares (shares) of credit institutions in foreign currency in cash. Further, this Instruction states that payment for shares (stakes) of a credit institution in foreign currency in a non-cash manner is carried out by residents at the expense of their own foreign exchange funds from their current foreign currency accounts with authorized resident credit institutions. Payment for shares (stakes) of a credit institution in foreign currency shall be made by resident credit institutions from their correspondent accounts with authorized resident credit institutions or non-resident credit institutions. Founders (participants) of credit institutions who are non-residents pay for shares (shares) from their foreign currency accounts with authorized resident credit institutions or from accounts with non-resident banks. To credit funds received from founders (participants) in foreign currency in payment for shares (shares), credit organizations open correspondent accounts in Vneshtorgbank or Sberbank of Russia in accordance with the established procedure (clause 1.16 of Part I of the Rules for Maintaining Accounting in Credit Institutions Located on the Territory of the Russian Federation). Federation, dated June 18, 1997 No. 61) [34] with a regime for maintaining accounts corresponding to their names. Payment by non-residents of shares (stakes) in credit institutions in foreign currency is carried out after obtaining permission from the Bank of Russia in accordance with the requirements of Bank of Russia Regulation No. charter capital of a registered credit institution at the expense of non-residents”, which states that the participation of a non-resident in the formation of the charter capital of a resident credit institution is possible only after obtaining permission from the Bank of Russia. At the same time, a resident credit institution registered in the form of an open joint-stock company may be given permission to sell shares to non-residents in the primary market (without specifying the alleged non-resident shareholders), if the total share of foreign investors following the results of the issue does not exceed one percent of its authorized capital. Permission to increase the authorized capital at the expense of non-residents is issued: a) a territorial branch of the Bank of Russia or OPERU-2 (depending on which of these bodies supervises the activities of the credit institution), if, as a result of an increase in the authorized capital, non-residents will own up to one percent (inclusive) of shares in the authorized capital of the credit institution; b) the central office of the Bank of Russia, if, as a result of an increase in the authorized capital, non-residents will own more than one percent of the shares in the authorized capital of the credit institution. Credit institutions supervised by the Second Operational Department send a package of documents to OPERA-2, which, within one month from the date of receipt of these documents, sends its opinion to the Banking and Audit Licensing Department. The Directive of the Central Bank of March 19, 1999 No. 513-U states that founders (participants) can pay in foreign currency for shares (stakes) of credit institutions, both licensed by the Bank of Russia to conduct banking operations in foreign currency, and not having such a license . Credit institutions that do not have a license to conduct banking operations in foreign currency may use the foreign currency received as payment for shares (shares) only for economic purposes for carrying out foreign economic activity without obtaining a special permit from the Bank of Russia. The value of shares (stakes) in credit institutions, if paid in foreign currency, is determined by the general meeting of founders (members) of the credit institution or by the board of directors (supervisory board) (hereinafter referred to as the authorized body) in accordance with the procedure established by the legislation of the Russian Federation and Bank of Russia regulations, with taking into account the requirements of this Instruction. When paying for shares (shares) of credit institutions with funds in foreign currency, the single European currency euro and the national currency of the following countries can be used: Australia, Austria, Belgium, Great Britain, Germany, Greece, Denmark, Ireland, Spain, Italy, Canada, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, USA, Finland, France, Sweden, Switzerland, Japan. By decision of the authorized body of a credit institution, payment for shares (stakes) of credit institutions may be made in foreign currency in accordance with paragraph 1.6 of the CBR Directive No. 19-U dated March 1999, 513. The authorized body of the credit institution shall establish the value at which payment for shares (shares) must be made in the currency of each country in which payment of the authorized capital of the credit institution is allowed, as well as in Russian rubles. The nominal value of shares (stakes) of credit institutions paid in foreign currency must be expressed in constituent documents and lists of founders (participants) only in rubles and recorded on separate personal accounts of founders (participants) on balance sheets of the second order. Payment of the authorized capital of credit institutions with federal loan bonds with a constant coupon income and cash CBR Directive No. 8-U, dated June 1999, 571, "On the Procedure for Payment for Interests (Shares) in Credit Institutions with Federal Loan Bonds with a Constant Coupon Income and in Cash" provides for the procedure for payment for shares (shares) in credit institutions with federal loan bonds with a constant coupon income issued by in accordance with the Decree of the Government of the Russian Federation of December 12, 1998 No. 1787-r "On Novation of Government Securities", as well as the Regulations "On the Procedure for Novation of Government Short-Term Zero-Coupon Bonds and Federal Loan Bonds with Constant and Variable Coupon Income with Terms redemption until December 31, 1999 and put into circulation before the announcement of the Government of the Russian Federation and the Central Bank of the Russian Federation dated August 17, 1998 by replacing, in agreement with their owners, with new obligations and partial payment of funds "approved by the Ministry of Finance of the Russian Federation II and the Bank of Russia on December 21, 1998 No. 258 and 375-T (with subsequent amendments and additions). Bonds can be used to pay for shares (shares) of established and operating credit institutions. Clause 1.2 of CBR Directive No. 571-U states that the maximum amount of the part of the charter capital of a credit institution paid up in bonds may not exceed 25 percent of the total charter capital of a credit institution, taking into account the bonds contributed, as well as taking into account the previously paid shares (shares) bonds. This paragraph of the Instruction applies regardless of the amount of the authorized capital paid up by other types of non-monetary funds. Bonds accepted as payment for shares (shares) must belong to the owner of the bonds on the basis of ownership and not be encumbered with any obligations. The decision of the authorized body of a credit institution, and for newly created credit institutions - the general meeting of founders (participants) must determine the total amount of the authorized capital (or its increase) paid in bonds, as well as the price of bonds at which they are accepted as payment for shares (shares) . The price of bonds when paying for shares (shares) is approved in accordance with Art. 34 of the Federal Law "On Joint Stock Companies" and Art. 15 of the Federal Law "On Limited Liability Companies". The method and procedure for determining the price of bonds when paying for shares must be indicated in the issue prospectus (for credit institutions created and operating in the legal form of a joint stock company). [35] The Bank of Russia recommends determining the price of bonds when paying for shares (shares), taking into account that it is a multiple of the par value of a share (its part) or the par value of a share (its part). The price of bonds when paying for shares (shares) cannot be more than the market price of bonds on a certain date: the date of the decision to issue securities paid for by bonds - for credit institutions established in the organizational and legal form of a joint-stock company; the date of adoption by the authorized body of a decision to pay for shares in bonds - for credit institutions established in the organizational and legal form of a limited (additional) liability company. Here, the market price is understood as the weighted average for the last five consecutive trading days, formed on the basis of the results of trading sessions. Payment for shares (shares) in bonds is carried out within the time limits established by federal laws and regulations of the Bank of Russia, as well as by the registered decision on the issue of securities and the prospectus for the issue of securities (if the registration of the issue is accompanied by the registration of the prospectus for the issue of securities). On the timing of payment of the authorized capital of a credit organization, see: Federal Law “On Banks and Banking Activities”, Instruction of the Central Bank of July 23, 1998 No. 75-I. Depository accounting of bonds is carried out in the manner established by the Bank of Russia. [36] Features of payment by bonds for the authorized capital of credit institutions established in the organizational and legal form of a joint-stock company: ▪ to pay for shares, bonds, on behalf of the resident bond owner, are transferred to the “Blocked for payment of the authorized capital” section of the bond owner’s securities account; ▪ to pay for shares, bonds on behalf of the non-resident bond owner are transferred to the section “Non-resident securities for payment for shares of credit institutions - payment from account “C” of the bond owner’s securities account.” The Bank of Russia is appointed as the operator of the section “Blocked for payment of authorized capital”, “Non-resident securities for payment for shares of credit institutions - payment from account “C” of the bond owner’s securities account.” The credit institution opens (if necessary) a depo account and appoints the depo account of the Bank of Russia credit institution as the operator of the "Blocked against payment of authorized capital" section. Procedure for establishing and licensing a credit organization Articles 12-13 of the Federal Law on the Bank of Russia provide that credit institutions are subject to state registration with the Bank of Russia. The Bank of Russia carries out the state registration of credit institutions and maintains the Book of State Registration of Credit Institutions. For the registration of credit institutions, a fee is charged in the amount determined by the Bank of Russia, but not more than 1 percent of the declared authorized capital of the credit institution. According to the CBR instruction No. 24-U dated November 1998, 421, the fee for the state registration of a credit institution is set at 0,1 percent of the authorized capital of a credit institution specified in its charter, and for opening a branch - at a rate of 100 times the minimum wage established by federal law at the time of notification of the Bank of Russia about the opening of a branch. This fee goes to the federal budget. A banking license for a credit institution is issued after its state registration in accordance with the procedure established by federal law. Credit institutions acquire the right to carry out banking operations from the moment they receive a license issued by the Bank of Russia. Banking operations are carried out only on the basis of a license issued by the Bank of Russia in the manner prescribed by federal law. Licenses issued by the Bank of Russia are recorded in the register of issued banking licenses. The register of licenses issued to credit institutions is subject to publication by the Bank of Russia in the official publication of the Bank of Russia (the Bulletin of the Bank of Russia) at least once a year. Changes and additions to the said register are published by the Bank of Russia within one month from the date of their entry into the register. The banking license shall indicate the banking operations to which the given credit institution is entitled, as well as the currency in which these banking operations may be carried out. A license for banking operations is issued without limitation of its validity period. The implementation by a legal entity of banking operations without a license entails the collection from such a legal entity of the entire amount received as a result of these operations, as well as the collection of a fine in the double amount of this amount to the federal budget. Recovery is carried out in court at the suit of the prosecutor, the relevant federal executive body authorized to do so by federal law, or the Bank of Russia. The Bank of Russia has the right to file a claim with an arbitration court for the liquidation of a legal entity carrying out banking operations without a license. Citizens who illegally carry out banking operations bear civil, administrative or criminal liability in accordance with the procedure established by law. In Art. 14 of the cited Federal Law says that for the state registration of a credit institution and obtaining a license for banking operations, the following documents are submitted: 1) an application for the state registration of a credit institution and the issuance of a license to carry out banking operations; 2) the memorandum of association, if its signing is provided for by federal law; 3) articles of association; 4) minutes of the meeting of founders on the adoption of the charter and on the approval of candidates for appointment to the positions of heads of executive bodies and the chief accountant; 5) certificate of payment of the state fee; 6) copies of certificates of state registration of founders - legal entities, audit reports on the reliability of their financial statements, as well as confirmation by the State Tax Service of the Russian Federation of the fulfillment of obligations by the founders - legal entities to the federal budget, budgets of constituent entities of the Russian Federation and local budgets for the last three years ; [37] 7) declarations on the income of the founders - individuals, certified by the authorities of the State Tax Service of the Russian Federation, confirming the sources of origin of funds contributed to the authorized capital of the credit institution (see letter of the State Tax Service of the Russian Federation dated November 30, 1998 No. ShS-6-08 / 855); 8) questionnaires of candidates for the positions of heads of executive bodies and chief accountant of the credit institution, filled in by them and containing information: ▪ about the presence of these persons with a higher legal or economic education (with the presentation of a copy of the diploma or a substitute document) and at least one year of experience in managing a department or other division of a credit institution related to banking operations, and in the absence of special education - management experience such a unit for at least two years; ▪ about the presence (absence) of a criminal record. In Art. 15 of the Federal Law establishes that when submitting the Documents listed in Art. 14 of the Federal Law, the Bank of Russia shall issue to the founders of a credit institution a written confirmation of receipt from them of the documents necessary for the state registration of a credit institution and obtaining a license for banking operations. A decision on the state registration of a credit institution and the issuance of a license for banking operations or on a refusal to do so shall be made within a period not exceeding six months from the date of submission of all documents provided for by the Federal Law. After the Bank of Russia makes a decision on the state registration of a credit institution and the issuance of a license for banking operations, the Bank of Russia within three days notifies the founders of the credit institution with a requirement to pay 100 percent of its declared authorized capital within a month and issues a certificate of state registration of the credit institution to the founders . Non-payment or incomplete payment of the authorized capital within the established period shall be grounds for annulment of the decision on the state registration of a credit institution. In order to pay for the authorized capital, the Bank of Russia opens a correspondent account with the Bank of Russia for a registered credit institution, the details of which are specified in the Bank of Russia's notification of the state registration of a credit institution and the issuance of a banking license. Upon presentation of documents confirming the payment of 100 percent of the declared authorized capital of the credit institution, the Bank of Russia within three days shall issue to the credit institution a banking license. A credit institution is obliged to notify the Bank of Russia of all changes in the personnel of the heads of executive bodies and of the replacement of the chief accountant within two weeks from the date of such a decision. The message on the appointment of a new head and (or) chief accountant must contain the information provided for in paragraphs. 8 art. 14 of the cited Federal Law. The Bank of Russia, within a month, agrees to these appointments or submits a reasoned refusal in writing on the grounds provided for in Art. 16 of the Federal Law. The grounds and procedure for refusing state registration of a credit institution and issuing a license to carry out banking operations are provided for in Art. 16 of the Federal Law: 1) non-compliance with the qualification requirements for the proposed candidates for the positions of heads of executive bodies and (or) chief accountant. Non-compliance with the qualification requirements for the specified persons means: ▪ they do not have a higher legal or economic education and experience in managing a department or other division of a credit institution related to banking operations, or have at least two years of experience in managing such a division; ▪ having a criminal record for committing crimes against property, economic and official crimes; ▪ commission during the year of an administrative offense in the field of trade and finance, established by a resolution of the body authorized to consider cases of administrative offenses that has entered into legal force; ▪ the presence, within the last two years, of termination of an employment agreement (contract) with the specified persons at the initiative of the administration on the grounds provided for in clause 2 of Art. 254 Labor Code of the Russian Federation; 2) the unsatisfactory financial position of the founders of the credit institution or their failure to fulfill their obligations to the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets over the past three years; 3) non-compliance of documents submitted for state registration of a credit institution and obtaining a license with the requirements of federal laws. The decision to refuse state registration and issue a license must be communicated to the founders of a credit institution in writing. It must be motivated. Refusal of state registration and issuance of a license, failure of the Bank of Russia to adopt an appropriate decision within the established period may be appealed to an arbitration court. In Art. 17 of the cited Federal Law provides that for state registration of a credit organization with foreign investments and a branch of a foreign bank and their obtaining a license to carry out banking operations, in addition to the documents specified in Art. 14 of the Federal Law, a foreign legal entity additionally represents: 1) a decision on his participation in the creation of a credit organization on the territory of the Russian Federation or on the opening of a bank branch; 2) a document confirming the registration of a legal entity and balance sheets for the three previous years, confirmed by an audit report; 3) written consent of the relevant control body of the country of his residence to participate in the creation of a credit organization on the territory of the Russian Federation or to open a bank branch in cases where such permission is required by the legislation of the country of his residence. A foreign individual provides confirmation from a first-class (according to international practice) foreign bank of the person's solvency. In addition, Art. 18 of the Federal Law establishes additional requirements for the establishment and operation of credit institutions with foreign investment and branches of foreign banks. The size (quota) of participation of foreign capital in the banking system of the Russian Federation is established by federal law on the proposal of the Government of the Russian Federation, agreed with the Bank of Russia. The specified quota is calculated as the ratio of the total capital owned by non-residents in the authorized capital of credit institutions with foreign investment and the capital of branches of foreign banks to the total authorized capital of credit institutions registered in the Russian Federation The Bank of Russia stops issuing banking licenses to banks with foreign investment, branches of foreign banks upon reaching the established quota. A credit institution must obtain prior permission from the Bank of Russia to increase its authorized capital at the expense of non-residents' funds, to alienate (including sell) its shares (stakes) in favor of non-residents, and resident members of a credit institution - to alienate their shares (stakes) credit institution in favor of non-residents. The above transactions for the alienation of shares (stakes) to non-residents, made without the permission of the Bank of Russia, are invalid, except for the cases provided for by part five of this article. The Bank of Russia has the right to impose a ban on increasing the authorized capital of a credit institution at the expense of non-residents' funds and on the alienation of shares (stakes) in favor of non-residents, if the result of this action is to exceed the quota for participation of foreign capital in the banking system of the Russian Federation. A statement of intent to increase the authorized capital of a credit institution at the expense of non-residents' funds and on the alienation of shares (stakes) in favor of non-residents is considered by the Bank of Russia within two months from the date of submission of the application. The result of its consideration is the permission of the Bank of Russia to conduct the operation indicated in the application or a reasoned refusal in writing. The Bank of Russia shall have the right, upon agreement with the Government of the Russian Federation, to establish restrictions on banking operations for credit institutions with foreign investments and branches of foreign banks, if in the relevant foreign states banks with Russian investments and branches of Russian banks are subject to restrictions in their establishment and activities. The Bank of Russia has the right to establish, in accordance with the procedure established by the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", additional requirements for credit institutions with foreign investments and branches of foreign banks regarding mandatory ratios, the procedure for reporting, approval of the composition of management and the list of banking operations, as well as regarding the minimum amount of the authorized capital of newly registered credit institutions with foreign investments and the minimum amount of capital of newly registered branches of foreign banks. Currently, the "Regulations on the Peculiarities of Registration of Credit Institutions with Foreign Investments and on the Procedure for Obtaining Prior Permission from the Bank of Russia to Increase the Authorized Capital of a Registered Credit Institution at the expense of Non-Residents' Funds", approved by Order No. 23-1997 of April 02, 195, are in force. Revocation of a license from a credit institution Revocation of a license is an extreme measure applied by the Bank of Russia in the exercise of supervision. In Art. 19 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" states that in case of violation of federal laws, regulations and instructions of the Bank of Russia, mandatory standards established by it, failure to provide information, submission of incomplete or inaccurate information, as well as "committing actions, pose a real threat to the interests of depositors and creditors, the Bank of Russia has the right, by way of supervision, to apply to a credit institution the measures established by the Federal Law. In Art. 20 of the Federal Law provides for the following grounds for revoking a banking license. 1) establishing the unreliability of the information on the basis of which the license was issued, 2) delay in the commencement of banking operations provided for by the license for more than a year from the date of its issuance; 3) establishing the facts of unreliability of reporting data, delays of more than 15 days in the submission of monthly reports (reporting documentation); 4) carrying out, including one-off, banking operations not provided for by the license of the Bank of Russia; 5) failure to comply with the requirements of federal laws regulating banking activities, as well as regulations of the Bank of Russia, if during the year the credit organization was repeatedly subject to measures provided for by the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”; 6) the inability of the credit institution to satisfy the claims of creditors on monetary obligations and (or) to fulfill the obligation to make mandatory payments within one month from the date of their execution, if the claims against the credit institution in the aggregate amount to at least one thousand minimum wages established by the federal by law; 7) repeated during the year culpable failure to comply with the requirements contained in the executive documents of the courts, arbitration courts for the recovery of funds from the accounts (deposits) of the clients of the credit institution in the presence of funds on the account (deposit) of these persons. Revocation of a license for banking operations on other grounds, except for those listed, is not allowed. A notice of revocation of a license to carry out banking operations is published by the Bank of Russia in the official publication of the Bank of Russia (Bulletin of the Bank of Russia) within a week from the date of adoption of the relevant decision. From the moment a credit organization revokes a banking license: 1) the deadline for fulfilling the obligations of the credit institution is considered to have come. The credit institution's obligations in foreign currency are recorded in rubles at the exchange rate of the Bank of Russia in effect on the date of revocation of the credit institution's banking license; 2) the accrual of interest, as well as penalties (fines, penalties) and other financial (economic) sanctions on the obligations of the credit institution, is terminated; 3) the execution of enforcement documents on property penalties is suspended, with the exception of the execution of enforcement documents issued on the basis of court decisions on the collection of arrears of wages, payment of royalties under copyright agreements, alimony, as well as compensation for damage caused to life and health, and moral damage which entered into legal force until the credit institution’s license to carry out banking operations was revoked; [38] 4) until the creation of a liquidation commission (liquidator) or the appointment of a bankruptcy trustee by the arbitration court, it is prohibited to conclude transactions with a credit organization and fulfill obligations under transactions of a credit organization (except for transactions related to current utility and operating payments of a credit organization, as well as with the payment of severance pay and remuneration of persons working under an employment agreement (contract), within the cost estimate agreed upon with the Bank of Russia or with an authorized representative of the Bank of Russia if appointed). [39] Topic 7. LEGAL STATUS OF THE BANK OF RUSSIA The origin of central (issuing banks) and their essence The emergence of money and monetary power historically coincides with the emergence of the state and law. According to historians, as well as various experts involved in the study of the origin of the state and law, the first states appeared in ancient times, in the East, about V-VII thousand years BC. They arose as a result of the emergence of private property and the division of society into so-called classes, that is, into such large groups of people who differ in their historically determined place in the system of social production. Along with private property came the economic power of owners. With the development of commodity exchange, money and commodity-money turnover appeared. The role of money was played mainly by a homogeneous and easily divisible commodity with its own value, most often gold. With the advent of money, it became possible to hire a certain part of the people and oppose them to the rest of society in order to maintain the economic power of the owners. A special public authority arose that did not coincide with society itself - the state. A layer of officials gradually formed, relying in their activities on coercive force - the army, police, courts and prisons. The state at all times to some extent regulated the legal regime for the use of money: the methods of minting coins, collecting taxes, etc. But the monetary system itself developed in a purely market way without state intervention. Therefore monetary power as such was only economic power. The state did not create bodies that would regulate the monetary system or be responsible for the issue of money. Initially, the state was limited to creating general conditions and maintaining law and order. Legal measures were predominantly punitive in nature: liability for counterfeiting money, theft and other crimes. The state treasury was formed at the expense of taxes. Otherwise, the state was an ordinary subject of monetary relations. At first, as historians write, money changers and usurers appeared, and then, starting from the XNUMXth century, more complex formations - banks, which eventually began to issue their own money (banknotes). Banknotes were exchanged for gold and other precious metals. Independence of the Central Bank of the Russian Federation At present, when discussing the independence of the Bank of Russia, such aspects as the size of the country's foreign exchange reserves, the participation or non-participation of the Federation Council in interaction with the Bank of Russia through the National Banking Council, and the strengthening or weakening of the ruble have become particularly acute. In this regard, in the last chapter, we considered a draft legislative reform of the status of the Bank of Russia. Article 75 of the Constitution of the Russian Federation clearly enshrines the principle of independence of the Bank of Russia: "1. The monetary unit in the Russian Federation is the ruble. Monetary issue is carried out exclusively by the Central Bank of the Russian Federation. The introduction and issue of other money in the Russian Federation is not allowed. 2. Protecting and ensuring the stability of the ruble is the main function of the Central Bank of the Russian Federation, which it performs independently of other state authorities." The fact that the Constitution of the Russian Federation provides the Bank of Russia with a special and independent status is essentially not disputed by anyone. However, many authors disagree on the question of what degree of independence the Bank of Russia should have. There is also no unity in assessing ways to ensure its independence. This is partly due to political considerations. Thus, some legislators and experts believe that the State Duma can strengthen its influence on economic management through measures such as direct management of the Bank of Russia. The question of the independence of the Bank of Russia has come to the forefront of Russian political life. It should be said right away that this is not only a legal, but also, first of all, an economic issue and therefore its full study is possible only using the methods of a new scientific direction called constitutional economics. At the same time, all terms, including “constitution”, “independence” and “accountability”, need to be checked both from the point of view of the exact meaning of these terms and discrepancies, for example, the meaning of the concepts “constitution”, “constitutional” in Russian and English languages, since the English term has a broader meaning. According to his approach, if this terminological difference is not taken into account, many Western concepts, including constitutional economics and the independence of central banks, can be distorted when translated into Russian. In particular, the concept of "accountability" is often translated as "accountability", instead of the correct meaning of "responsibility". Now let's move on to the analysis of the status of the Bank of Russia in terms of the following main parameters: ▪ special and independent status; ▪ independent implementation of functions; ▪ organizational unity of management; ▪ property and financial independence; ▪ scope of civil legal capacity. The first parameter allows us to determine how isolated the central bank is from government authorities. This factor is crucial to ensure his independence. The second parameter shows the degree of independence of the central bank in making decisions and performing the tasks assigned to it. The independent exercise of functions largely depends on the completeness and clarity of the rights and responsibilities of the central bank. The absence of competing competences of the central bank and executive authorities is also of considerable importance. The third parameter evaluates the unity of the management structure, which does not allow internal conflicts and contributes to the effective implementation of functions. Conflicts (confrontation) between the governing bodies of the central bank lead to interference in its activities by government bodies. The fourth parameter determines the sufficiency of material resources and guarantees of financial (budgetary) independence of the central bank. The fifth parameter assesses the possibilities of participation of the central bank in civil legal relations. Limitation of civil legal capacity prevents the implementation of many functions of the central bank and reduces the degree of its property and financial independence. Special status of the Bank of Russia As noted above, the Constitution of the Russian Federation assigns a special and independent constitutional legal status to the Bank of Russia. Only he has the right to issue money in the Russian Federation. Only he was given the function of protecting and ensuring the stability of the ruble. At the same time, any interference in his activities for the implementation of these functions is not allowed (Article 75). The constitutional and legal status of the Central Bank of the Russian Federation is ensured by a number of other norms of the Constitution. In accordance with the requirements of paragraph "g" of Article 71 of the Constitution of the Russian Federation, money emission falls under the jurisdiction of the Russian Federation. Thus, the Constitution establishes an additional guarantee of the exclusive right of the Central Bank to issue money (Part 1 of Article 75). Subjects of the Russian Federation do not have such a right. The Constitution classifies federal banks, including the Central Bank, as federal economic services (clause “g” of Article 71), thereby indicating that they are not part of the general structure of the separation of powers, are under the exclusive jurisdiction of the federation, and are endowed with special monetary functions. credit policy. This conclusion is confirmed by a more detailed analysis of constitutional norms. The Constitution does not mention the Bank of Russia among the bodies exercising state power in the Russian Federation. In accordance with the provisions of Article 11, they include the President, the Federal Assembly (the Federation Council and the State Duma), the Government and the courts of the Russian Federation. The provisions of the Constitution that establish the principle of separation of powers into legislative, executive and judicial (Article 10) also do not apply to the Central Bank, since the Central Bank of the Russian Federation is not assigned to any of the above branches of power. Such a decision, it seems, was not accidental, since the Central Bank is entrusted with functions of state power that are special in nature. They are not as universal as the functions of the presidential, legislative, executive and judicial branches of power. They are limited in scope and do not affect the functioning of other public authorities. It should also be emphasized that the principle of independence of the Central Bank excludes it from the system of separation of powers, since the separation of powers presupposes a special mechanism of “checks and balances” that does not allow the independence of some government bodies from others. It is very noteworthy that in relation to such branches of government as the legislative, executive and judicial, the Constitution uses the term “independent”. There can be no independence in their relationship. The Constitutional Court of the Russian Federation has repeatedly drawn attention to this fact.” Finally, we note the fact that the authors of the Constitution sought to secure the independence of the Central Bank in every possible way. This is evidenced not only by the categorical wording of Article 75 of the Constitution, but also by the fact that the status of the Central Bank is enshrined in Chapter Three - in that part of the Constitution that is devoted to the federal structure of the Russian Federation. It follows from this that the Constitution actually removes the Central Bank from the general system of organization of state power and equally distances it from both federal and regional bodies. This conclusion is also confirmed by a comparative legal analysis of the constitutional regulation of those bodies that, along with the Central Bank, are not included in Article 1 1 of the Constitution among the bodies exercising state power. We are talking here about such constitutional bodies as the Prosecutor's Office and the Accounts Chamber. The status of these bodies is directly enshrined in the Constitution itself. But unlike the Central Bank, they do not have an independent status. The prosecutor's office is included by the Constitution in the orbit of the judiciary. This is evidenced by the very fact of fixing the norms on the prosecutor's office in the seventh chapter of the Constitution ("Judicial Power"). The Accounts Chamber is included in the framework of the legislative power, which is confirmed by the relevant constitutional norms of the fifth chapter of the Constitution, dedicated to the Federal Assembly. Concluding the question of the constitutional framework of the status of the Bank of Russia, we can note the following main features. 1. The Central Bank of the Russian Federation has an independent constitutional status. 2. The Central Bank of the Russian Federation is not included in the system of any of the branches of government. 3. The Central Bank of the Russian Federation performs functions of state power that are special in their legal nature. 4. Other state authorities may not interfere in the exercise of the constitutional functions of the Central Bank of the Russian Federation. 5. The principle of independence of the Central Bank excludes any "checks and balances" from other public authorities. 6. The status of the Central Bank is established directly by the Constitution and can only be changed by reviewing the Constitution itself. 7. The Central Bank is a permanent constitutional body. Its activities cannot be terminated or suspended until the Constitution itself is changed. It should be noted that a similar status has been granted to central banks in many states. Thus, the Organic Law "On the Central Bank of Chile" of 1976 provides that "the Central Bank is an independent body that has an independent constitutional status, has the rights of a legal entity and has an unlimited term of office ... The Bank, in exercising its functions and powers, is guided solely by rules of this Organic Law and shall not follow any other general or special provisions of public law" (Articles 1 and 2). In Yugoslavia, the Constitution defines the Central Bank as "an independent institution of the monetary system" (Article 114). The Law "On the National Bank of Bulgaria" of 1997 clearly states that "in the performance of its functions, the Bank must be independent of any interference from the Council of Ministers and other state bodies" (Article 4). And the South African Constitution requires that the Bank of South Africa "act in the pursuit of its essential purpose independently, without fear, preference or prejudice" (art. 224). By securing the independent status of the Central Bank, the authors of the Constitution of the Russian Federation sought to solve the following tasks - to ensure the independence and protection of the monetary system of the Russian Federation, to exclude intrusion into the constitutional competence of the Central Bank, to protect it from market demands and momentary requests of other state authorities. At the same time, the authors of the Constitution sought to eliminate threats to the independence of the Central Bank from both the Federal Assembly and the Government of the Russian Federation. The fact is that many legislators, as the experience of the Supreme Soviet of Russia showed, saw a panacea for all economic ills in the issue of money. Even now, many deputies believe that to solve economic problems, it is enough to turn on the "printing press". At the same time, the consequences that the issuance of unsecured money can lead to are not taken into account. It was these factors that predetermined at one time the need for such an unconditional recognition in the Constitution of the principle of independence of the Central Bank. The validity of this conclusion is confirmed by the position of the Constitutional Court, formulated in the Ruling of December 14, 2000 at the request of the Supreme Court to verify the constitutionality of part 3 of Art. 75 of the Law on the Bank of Russia. In this document, in particular, it is noted: "The status of the Central Bank of the Russian Federation is established by the Constitution of the Russian Federation, in Article 75 of which its exclusive right to issue money (Part 1) is defined and as its main function - protection and stability of the ruble ( Part 2). These powers, by their legal nature, relate to the functions of state power, since their implementation involves the use of measures of state coercion. The normative powers of the Bank of Russia imply its exclusive rights and obligations to establish rules binding on state authorities, all legal entities and individuals conduct on issues within its competence and requiring legal regulation. At the same time, the Constitutional Court points out that the legislator should "proceed from the special constitutional and legal status of the Bank of Russia." In the light of the foregoing, it can be noted that the Constitution establishes rather strict guarantees of the independent status of the Bank of Russia, which, unfortunately, are not fully observed in the current legislation. In this regard, attention should be paid to Articles 5 and 87 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". Part two of Article 5 of the Federal Law establishes the following provision: "The Bank of Russia, within the limits of its powers granted to it by the Constitution of the Russian Federation and federal laws, is independent in its activities. Federal state authorities, state authorities of the constituent entities of the Russian Federation and local governments do not have the right to interfere in the activities of the Bank of Russia in the exercise of its legally enshrined functions and powers, to make decisions that are contrary to this Federal Law. Thus, in this norm, not only the powers, but also the independence of the Central Bank of the Russian Federation is limited to the framework provided by the legislator in federal laws. Such a provision does not meet the constitutional requirements for the independence of the Central Bank, since Part 2 of Article 75 of the Constitution of the Russian Federation does not require any specification, and its operation cannot be limited by federal law. Part 1 of Article 5 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" establishes the requirement that the Bank of Russia be accountable to the State Duma. This provision, in our opinion, contradicts the requirements of Part 2 of Article 75 of the Constitution of the Russian Federation, since the principle of independence of the Bank of Russia from other state authorities excludes any form of dependence, including accountability to anyone. In this regard, the following should be noted. As noted above, the Bank of Russia has an independent constitutional and legal status. He is endowed with exclusive powers. Interference in their implementation is not allowed. Taking into account these requirements of the Constitution, the relationship of the Bank of Russia with other public authorities should be based on the principles of equality of parties, and not accountability, since from a constitutional and legal point of view, accountability means dependence or subordination of one body to another. The same Part 1 of Article 5 of the Federal Law specifies the forms of accountability of the Bank of Russia to the State Duma. In particular, it was established that the appointment and dismissal of the Chairman of the Central Bank are carried out by the State Duma on the proposal of the President of the Russian Federation, that members of the Board of Directors are appointed and dismissed by the State Duma, that the Central Bank submits to the State Duma for consideration an annual report and an audit report that the State Duma determines an audit firm to conduct an audit of the Central Bank of the Russian Federation. Such provisions do not comply or do not fully comply with the requirements of the Constitution of the Russian Federation. In this regard, the following should be emphasized. 1. Fixing the principle of independence of the Central Bank of the Russian Federation precludes any form of its accountability. As noted above, we can only talk about equality and interaction between public authorities. 2. The above powers of the State Duma do not fall into the list of those issues that, in accordance with Article 103 of the Constitution, are transferred to its jurisdiction. The expansion of the powers of the State Duma should be carried out in the order of the revision of the Constitution itself, and not through the adoption of federal laws. 3. Assigning the relevant powers to interact with the Bank of Russia only to the State Duma infringes on the constitutional rights of the Federation Council - the second chamber of the Federal Assembly of the Russian Federation. Issues of interaction with the Bank of Russia should be under the jurisdiction of the Federal Assembly as a whole, since the Constitution does not grant any of the chambers the exclusive right to interact with the Central Bank of the Russian Federation. 4. According to the Constitution of the Russian Federation, the State Duma is not endowed with control powers. Therefore, it is necessary to recognize the inadmissibility of such forms of control over the Central Bank of the Russian Federation as the consideration of annual reports on the activities of the Central Bank, the appointment of an audit firm to conduct an audit of the Central Bank of the Russian Federation, etc. Expansion of the control powers of the State Duma, especially in this matter , as the activity of the Central Bank, requires a revision of the Constitution itself in terms of the powers of both the State Duma itself and the status of the Central Bank of the Russian Federation. 5. Certain forms of accountability of the Central Bank do not comply with the requirements of the Constitution of the Russian Federation. For example, fixing the constitutional principle of independence of the Central Bank excludes such a form of accountability as the appointment and dismissal of the chairman and members of the Board of Directors of the Central Bank. It is unacceptable to link the issues of appointment and removal from office with forms of accountability, since the right of the State Duma to participate in resolving personnel issues acquires a completely different meaning in the context of the accountability of the Bank of Russia. In this context, this provision serves the purpose of interfering in the activities of the Central Bank of the Russian Federation by changing or threatening to change its leadership. However, the most serious objections are raised by Article 87 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", according to which the Bank of Russia can be liquidated on the basis of the adoption of the relevant federal law. According to the Constitution of the Russian Federation, the Central Bank of the Russian Federation has an independent constitutional and legal status. Only he is endowed with exclusive rights to issue money, protect and ensure the stability of the ruble (Article 75). In the event of liquidation of the Bank of Russia, these constitutional functions will not be implemented. It is easy to imagine what consequences this may have for the country's economy. In this connection, we also note the following circumstance. The specified provision of Article 87 actually negates the constitutional guarantees of the independence of the Central Bank, forcing it to be more "compliant" in view of the threat of its liquidation. Such norms of legislation do not comply with the constitutional requirements for the independent status of the Bank of Russia. Functions of the Bank of Russia One of the foundations of the constitutional order of the Russian Federation is the unity of the economic space (Part 1 of Article 8 of the Constitution). In many ways, it is ensured by the unity of the country's monetary system. The monetary unit of the Russian Federation is the ruble. The introduction and issue of other money in the Russian Federation is not allowed (Part 2 of Article 75 of the Constitution). The issue of money is assigned by the Constitution to the jurisdiction of the Russian Federation (clause "g" of Article 71) and is carried out exclusively by the Central Bank of the Russian Federation (Part 1 of Article 75). At the same time, the Constitution of the Russian Federation clearly establishes its main tasks - the protection and stability of the ruble (Part 2 of Article 75). As noted above, the functions of the Central Bank of the Russian Federation for issuing money, protecting and securing the ruble have a special legal nature. They undoubtedly relate to the functions of state power, since the Central Bank, in the exercise of these functions, acts on behalf of the state, is endowed with power, has the right to apply measures of state coercion. If this obvious fact is not recognized, one can not only confuse the issue of the functions of the Central Bank, but also cast doubt on the legality (legitimacy) of the current Russian currency as a "product" of the activities of the Central Bank of the Russian Federation. At the same time, these functions remain outside the scope of general constitutional regulation, since the Central Bank of the Russian Federation is removed from the framework of three separate powers - legislative, executive and judicial. This feature of the constitutional consolidation of the functions of the Central Bank, it seems, is designed to solve the following tasks: to ensure the independence and protection of the monetary system of the Russian Federation, to exclude intrusion into the constitutional competence of the Central Bank, to protect it from market requirements and momentary requests of other state authorities. Exactly the same tasks are solved by the legislation of many foreign countries. Thus, the Law "On the Autonomy of the Bank of Spain" of 1994 indicates that "in the field of monetary policy, the Bank should not receive instructions from the government or the Minister of Economy and Finance, which will allow it to carry out its policy in the interests of the main goal - maintaining price stability" (Preamble Law). The Law "On the Bank of England" of 1998 establishes that the main goal of the Bank of England is "maintaining price stability, and also, if this does not contradict this goal, promoting the economic policy of the Government" (Article 11). The law "On the Bundesbank" determines that the main goal of the Bank of Germany is price stability (Article 1). The guarantees of functional independence are most clearly defined in Articles 105 and 107 of the Maastricht Treaty: "The main objective of the European System of Central Banks shall be the maintenance of price stability ... In the exercise of the powers and in the exercise of the tasks and duties assigned to them by this Treaty and the Statute of the European System of Central Banks neither the European Central Bank nor the national central banks nor any member of their governing bodies shall seek or receive instructions from Community institutions or authorities, from any government of a Member State, or from any other authority. The Communities, as well as the governments of the Member States, undertake to respect this principle and not to attempt to influence the members of the governing bodies of the European Central Bank or national central banks in the performance of their tasks." It is necessary to dwell in more detail on the constitutional powers of the Bank of Russia to issue money, protect and ensure the stability of the ruble. The Constitution assigns to the Central Bank the exclusive right to issue money (Part 1 of Article 75). This provision excludes the right of other public authorities, any institutions and organizations to issue ruble emission or issue other payment signs that perform the function of money. Carrying out the function of money emission assigned to it, the Central Bank of the Russian Federation issues cash, organizes their circulation, determines and regulates the amount of money supply in circulation. Any interference in the issues of money emission is unacceptable. In this area, the Central Bank of the Russian Federation is endowed with exclusive rights and should not be subject to any influence from other state authorities. More complex questions arise when analyzing the constitutional norm on the functions of the Central Bank of the Russian Federation to protect and ensure the stability of the ruble. The current legislation provides for a fairly extensive list of powers of the Bank of Russia, which ensure the implementation of its constitutional function to protect and ensure the stability of the ruble. In order to organize cash circulation, the Bank of Russia performs the following functions: forecasting and organizing production, transportation and storage of banknotes and coins, creation of their reserve funds; establishing rules for the storage, transportation and collection of cash for credit institutions; establishing signs of the solvency of banknotes and the procedure for replacing damaged banknotes and coins, as well as their destruction; determination of the procedure for conducting cash transactions (Article 34 of the Law on the Bank of Russia). The main instruments and means of the monetary policy of the Bank of Russia are: ▪ interest rates on Bank of Russia operations; ▪ standards for required reserves deposited with the Bank of Russia (reserve requirements); ▪ open market operations; ▪ refinancing of banks; ▪ currency regulation; ▪ establishing benchmarks for money supply growth; ▪ direct quantitative restrictions; ▪ issuing bonds in one's own name (Article 35 of the Law on the Bank of Russia). In more detail, the Law on the Bank of Russia regulates the procedure for the formation of required reserves of credit institutions (Article 38); issues of Central Bank operations on the open market for the sale and purchase of treasury bills, government bonds and other government securities (Article 39); organization of refinancing (Article 40); implementation of foreign exchange interventions (Article 41); establishment of direct quantitative indicators (art. 42); determination of benchmarks for the growth of money supply indicators (Article 43). In accordance with Article 44 of the Law on the Bank of Russia, the Central Bank annually, no later than October 1, submits to the State Duma a draft of the main directions of the unified state policy and no later than December 1 - the main directions of the unified state monetary policy for the coming year. The previously specified document is sent to the President and the Government of the Russian Federation. It should include an analysis of the state and forecast of the development of the economy, as well as the main guidelines, parameters and instruments of a single state monetary policy. In addition to the above, we can mention a number of other powers of the Bank of Russia, which are directly related to ensuring its constitutional function of protecting and ensuring the stability of the ruble. First of all, we are talking about the formation of gold and foreign exchange reserves and the implementation of foreign exchange control. Of considerable importance in protecting the stability of the ruble is the exercise of control over the activities of credit institutions, as well as the participation of the Bank of Russia in the capital of systemically important banks. The question of the participation of the Central Bank in the capital of systemically important banks should be dealt with separately. Articles 7, 8, paragraph 2 of article 48 of the Law on the Bank of Russia establish that it cannot participate in the capital of other credit institutions, unless otherwise provided by federal laws or international treaties of the Russian Federation. The question of the participation of the Central Bank in the capital of credit institutions can only be decided by law. Such norms infringe upon the rights of the Bank of Russia and limit the application of the set of measures that may be required to protect and ensure the stability of the ruble. One of the generally recognized measures to stabilize the monetary system is participation in the capital of other credit institutions. Often this measure becomes the only means that can be used to prevent the collapse of the national currency. Modern history provides many examples of this. It also indicates that one of the causes of the systemic crisis of the monetary system is the inability (unwillingness) of central banks to support commercial banks through participation in their capital. In general, the legislation establishes a sufficient amount of powers of the Bank of Russia to implement its main function - protecting and ensuring the stability of the ruble. However, a number of norms raise reasonable doubts. First of all, attention should be paid to the requirements of Art. 22 of the Law on the Bank of Russia, according to which the Central Bank must not provide loans to finance the budget deficit, buy government securities at their initial placement, except when it is provided for by the federal law on the federal budget. Such an obligation, established by law, may in practice hinder the implementation of the constitutional function of the Bank of Russia to protect and ensure the stability of the ruble. The current Law on the Bank of Russia also contains a number of other rules that make it possible to intervene in the monetary policy of the Central Bank. Thus, Article 2 provides that the state is not liable for the obligations of the Bank of Russia, and the Bank of Russia - for the obligations of the state, unless otherwise provided by federal laws. Through the adoption of federal laws, the Central Bank of the Russian Federation may be required to answer for any debts of the state, which will inevitably entail the need for additional emission, the introduction into circulation of an unsecured money supply. The question of in what cases and to what extent the Central Bank of the Russian Federation can assume the obligations of the state should be decided by the Bank of Russia itself, taking into account the needs that are dictated by the need to maintain the country's monetary system. Otherwise, his exclusive rights to issue money, protect and ensure the stability of the ruble will be violated. Let's give one more example of "legislative intervention" in the competence of the Central Bank of the Russian Federation. Article 23 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" establishes that the funds of the federal budget and state off-budget funds are kept in the Bank of Russia, unless otherwise provided by federal laws. This provision of the Federal Law contains a potential threat of the Central Bank of the Russian Federation being replaced by other credit institutions, which will inevitably affect the function of money emission, since in this case the Bank of Russia is deprived of the opportunity to use one of the most effective means of organizing circulation and regulating the volume of money supply. In this regard, we also note the fact that the implementation of this norm can eliminate the existing very effective mechanism for monitoring the receipt and expenditure of budgetary funds. Finally, it is necessary to pay attention to the following circumstance. In accordance with paragraph 14 of Art. 4 of the Law on the Bank of Russia, the competence of the Central Bank is limited to those powers that are established by federal laws. From this we can conclude that the Bank of Russia can only take those actions for which it is authorized directly by law. This limitation does not seem to be entirely justified. Legislation, by definition, cannot establish an exhaustive list of those measures that may be required to protect and ensure the stability of the ruble. The choice of certain measures should be determined by the Bank of Russia in each specific case, taking into account the real needs for protection and ensuring the stability of the ruble. Otherwise, the Central Bank will be deprived of the opportunity to provide the most effective regulation in this area of public life. Obviously, when consolidating the functions of the Bank of Russia, the legislator relied on a restrictive interpretation of constitutional norms, artificially narrowing the scope of their application. This approach does not seem to be justified. The Constitution of the Russian Federation establishes the basic principles and norms, the effect of which cannot be canceled or limited by law or other legal act. We also note that the function of interpreting the Constitution belongs to the Constitutional Court, and not to the Federal Assembly. Concluding the question of the functional independence of the Bank of Russia, it is necessary to consider the question of how its competence correlates with the powers of the Government of the Russian Federation. According to the Constitution of the Russian Federation, the Government ensures the implementation of a unified financial, credit and monetary policy in the Russian Federation (point "b" of part 1 of article 114). This constitutional provision, it seems, should not cause any conflicts with the norms of Art. 77. Each of these bodies has its own tasks, they have a different status, have different rights, solve issues of credit and monetary policy with their own, only their own means. However, the possibility of conflicts cannot be ruled out. In the absence of direct subordination between them, they can be resolved only on the basis of agreement (consensus). If the conflicts between the Government and the Central Bank turn out to be unresolvable, the priority in protecting and ensuring the stability of the ruble should remain with the Central Bank. After all, the Constitution entrusts him with the functions of protecting and ensuring the stability of the ruble, emphasizing that these functions should be carried out independently of other state authorities, including the Government of the Russian Federation. Management of the Bank of Russia The Constitution of the Russian Federation does not define the management structure of the Central Bank, limiting itself only to the issue of appointing and dismissing the Chairman of the Bank of Russia. The candidate for this position in the State Duma is presented by the President of the Russian Federation. He also puts before the State Duma the question of dismissing the Chairman of the Bank from office (clause "d" of Article 83 of the Constitution). The very same appointment to office and dismissal from office is carried out by the State Duma (paragraph "c" of Article 103 of the Constitution). Thus, the Constitution itself establishes such "checks and balances" that exclude the possibility of appointing or dismissing the Chairman of the Bank of Russia by decision of only one of the state authorities. The structure of the governing bodies of the Central Bank is established by the Law on the Bank of Russia. In addition to the Chairman, it includes the Board of Directors as the highest collegial governing body of the Bank of Russia. It should be noted that in this matter the Law on the Bank of Russia follows not only the historically established tradition, but also those models that were accepted by most foreign countries. As Professor O.E. Kutafin, The Law on the Bank of Russia establishes an important principle of the organizational unity of the Central Bank's management bodies. This principle is manifested, in particular, in the fact that the Chairman of the Bank of Russia ex officio heads the Board of Directors. Members of the Board of Directors are appointed and early dismissed by the State Duma on the proposal of the Chairman of the Bank of Russia. Decisions of the Board of Directors may be adopted only if the Chairman of the Bank or a person replacing him is required to attend the meeting. Thus, the Law on the Bank of Russia assigns a special role to the Chairman in the organizational structure of the management of the Central Bank. This role is predetermined by the very fact of enshrining in the Constitution only the position of the Chairman of the Bank of Russia. For the same reason, the Law establishes that the Chairman of the Bank of Russia acts on behalf of the Bank of Russia, represents its interests in relations with state authorities, organizations and institutions, and bears full responsibility for its activities (Article 18 of the Law on the Bank of Russia). We also note the internal consistency of the legislative consolidation of the powers of the bodies of the Bank of Russia, which also serves the purpose of ensuring the unity of its management structure. At the same time, it should be noted that the Law on the Bank of Russia provides for a number of significant guarantees for the collective management of the Central Bank. As noted above, the appointment and early dismissal of members of the Board of Directors are made by the State Duma. Meetings of the Board of Directors are held at least once a month. They can be convened not only by decision of the Chairman, but also at the request of at least three members of the Council. Meetings of the Board of Directors are competent if there is a quorum of 7 members of the Board. Decisions are taken by majority vote of the members present. These norms not only create a kind of mechanism for protecting collegial principles in the management of the Bank of Russia. They also do not allow interference in its management by executive authorities. Of particular note in this regard is Art. 19 of the Law on the Bank of Russia, according to which the Minister of Finance and the Minister of Economy can take part in the meetings of the Board of Directors, but only with an advisory vote. On the whole, the Law on the Bank of Russia quite consistently implements the requirement based on the Constitution of non-interference in the activities of the Central Bank by the executive authorities. In the same article 19 of the Law on the Bank of Russia regulates a number of additional forms of interaction between the Central Bank and executive authorities. In particular, it was established that the Bank of Russia and the Government of the Russian Federation inform each other about proposed actions of national importance, coordinate their policies, and hold regular consultations. The Chairman of the Bank of Russia or, on his instructions, one of his deputies participates in meetings of the Government of the Russian Federation. The Bank of Russia advises the Ministry of Finance on the schedule for issuing government securities and repaying government debt, taking into account their impact on the state of the banking system and the priorities of the unified state monetary policy. Such forms of interaction with executive authorities fully comply with the requirements of the Constitution regarding the independent implementation by the Bank of Russia of the function of protecting and ensuring the stability of the ruble. The relationship between the Bank of Russia and the State Duma and the Federal Assembly as a whole should be built in the same way. However, as noted above, the Law on the Bank of Russia does not fully comply with this constitutional requirement, establishing the principle of accountability of the Bank of Russia to the State Duma. In general, from the point of view of independence criteria, the management system of the Bank of Russia can be assessed positively. Only certain provisions of the Law on the Bank of Russia need some adjustment. In particular, it seems appropriate to extend the term of office of the Chairman of the Bank of Russia. Under current law, the term of office is 4 years. The President and the State Duma are elected for the same term, which gives them the opportunity to change the leadership of the Bank of Russia after the presidential and parliamentary elections. This state of affairs, as noted by Professor Kutafin, "is not entirely consistent with the constitutional principle of independent exercise by the Bank of Russia of the constitutional functions entrusted to it." If we turn to the experience of foreign countries, we can note the fact that the chairmen of central banks, as a rule, are elected for 6-8 years, that is, for a longer term than the president and parliament. Such a guarantee allows central banks to carry out their activities regardless of the change in the political leadership of the country: Thus, the Governor of the Banque de France is appointed for a 6-year term. Members of the Executive Board of the European Central Bank hold their positions for 8 years. Members of the Board of Governors of the US Federal Reserve System are appointed by the President with the advice and consent of the Senate for 14 years. The Law on the Bank of Russia establishes a closed list of grounds for the dismissal of the Chairman of the Bank from office: ▪ expiration of the term of office; ▪ inability to perform official duties, confirmed by the conclusion of the state medical commission; ▪ personal resignation letter; ▪ commission of a criminal offense established by a court verdict that has entered into force; ▪ violation of federal laws that regulate issues related to the activities of the Bank of Russia (Article 12). The validity of most of these grounds is not in doubt. Only the rule on violation of federal laws on the Bank of Russia causes comments. Such a ground for early removal from office is not fully consistent with the requirements of Art. 75 of the Constitution of the Russian Federation. The Bank of Russia should carry out its function of protecting and ensuring the stability of the ruble independently of other government bodies, including the Federal Assembly. At the same time, it does not matter in what legal form such interference can be carried out - in the form of a federal law or a resolution of one of the chambers of the Federal Assembly. If the acts of Parliament violate the requirements of Art. 75 of the Constitution, the Bank of Russia must comply not with legislative, but with constitutional norms. In such a situation, it is unacceptable to remove the Chairman of the Bank of Russia from office only on such grounds as a violation of federal laws. The conflict that has arisen can be eliminated if the specified norm of Art. 12 of the Law on the Bank of Russia will be formulated as follows: "Violation of federal laws that regulate issues related to the activities of the Bank of Russia and do not contradict the constitutional guarantees of the independent exercise by the Bank of Russia of the function of protecting and ensuring the stability of the ruble." It seems expedient to establish also such a procedure in which members of the Board of Directors will be appointed for a longer term than the Chairman of the Bank of Russia. According to Professor Kutafin, this will make it possible to ensure not only the continuity of the policy of the Bank of Russia, but also the independence of opinions of the members of the Board of Directors. Finally, it should be noted the need to improve the organization of the National Banking Council as an advisory body under the Bank of Russia. In particular, many experts note the expediency of increasing the size of the National Banking Council, primarily through a wider representation of the Federation Council and credit institutions. This will expand the possibilities for identifying existing needs in the monetary sphere and ensure greater interaction between the Bank of Russia and the banking community and with the constituent entities of the Russian Federation. At the same time, of course, the status of the National Banking Council as an advisory body under the Bank of Russia should be preserved. Otherwise, the constitutional guarantees of the independence of the Central Bank, which are incompatible with the participation of representatives of state bodies, as well as commercial organizations and institutions in its management bodies, may be violated. Property and financial independence of the Bank of Russia Article 2 of the Law on the Bank of Russia provides for a number of rules that ensure the property and financial independence of the Central Bank. The Bank of Russia is a legal entity and independently exercises the authority to own, use and dispose of its property. Seizure of such property or burdening it with obligations without the consent of the Bank of Russia is not allowed. Financing of the activities of the Bank of Russia is carried out at the expense of its own income. In addition, Art. 2 emphasizes that the state is not liable for the obligations of the Bank of Russia, and the Bank of Russia - for the obligations of the state, if they have not assumed such obligations or unless otherwise provided by federal laws. The issue of the responsibility of the Bank of Russia and credit institutions is resolved in a similar way: the Bank of Russia is not liable for the obligations of credit institutions, and credit institutions are not liable for the obligations of the Bank of Russia, except in cases where they assume such obligations (Article 79 of the Law on the Bank of Russia ). These general principles of property and financial independence are implemented in a number of other provisions of the Law on the Bank of Russia. In particular, it was established that the Bank of Russia has an authorized capital of 3 billion rubles (Article 9). The presence of authorized capital reflects the constitutional nature of the Bank of Russia as a banking institution. The law indicates that making a profit is not the purpose of the Bank of Russia (Article 3). The income he receives should be used to solve the main tasks assigned to him - to protect and ensure the stability of the ruble, including its purchasing power and exchange rate against foreign currencies; development and strengthening of the banking system; ensuring efficient and uninterrupted functioning of the settlement system; other areas of activity established by Art. 4 of the Law on the Bank of Russia. Financing of the activities of the Bank of Russia is carried out at the expense of the income that it receives from the operations provided for in Art. 45 of the Law on the Bank of Russia, as well as from participation in the capital of credit institutions. The balance sheet profit of the Bank of Russia is defined as the difference between its income and expenses (Article 10). 50 percent of the actually received balance sheet profit is subject to transfer to the federal budget. The remaining profit of the Bank of Russia is directed by the Board of Directors to reserves and funds of various directions. At the same time, the Law specifically emphasizes that the transfer of profits of the reporting year to the federal budget is allowed only after the annual report of the Bank of Russia is approved by the Board of Directors (Article 26). The Law on the Bank of Russia establishes a number of additional guarantees for the property and financial independence of the Central Bank. In particular, it was established that the cost estimate and expenses not provided for in the estimate are approved by the Board of Directors. The Board of Directors establishes the forms and amounts of remuneration for the work of the Chairman of the Bank of Russia, members of the Board of Directors, deputies of the Chairman and other employees of the Bank of Russia (clauses 3 and 5 of Article 16). This excludes the possibility of influencing the Bank of Russia through such measures as denial of financing, reduction in wages, withdrawal of its funds. The Bank of Russia is not registered with the tax authorities and is exempt from paying all taxes, fees, duties and other payments provided for by tax legislation (Articles 2 and 26 of the Law on the Bank of Russia). These norms not only ensure the replenishment of funds necessary for the implementation of the constitutional functions of the Bank of Russia, but also serve to protect it from administrative arbitrariness. Similar norms are established by the legislation of many countries. Thus, the Law "On the National Bank of Slovakia" indicates that "the Bank manages its finances in accordance with the budget, which is approved by the Board of Directors... The Bank's activities are financed from its income" (Article 38). The same rule is established by Art. 64 of the Law "On the National Bank of Poland". The Organic Law "On the Bank of Portugal" establishes that "the Bank is a public legal entity that has administrative and financial autonomy and has property assigned to it" (Article 1). On the whole, the degree of property and financial independence of the Bank of Russia can be quite highly assessed, which, however, does not exclude the need to change certain legislative norms. In particular, the provision of Art. 2 of the Law on the Bank of Russia, according to which the authorized capital and other property of the Bank of Russia are federal property. This wording does not reflect the purpose and special status of the property of the Bank of Russia. This drawback can be eliminated if the specified norm is set out as follows: "The authorized capital and other property of the Bank of Russia are federal property, which is intended to carry out the constitutional function of protecting and ensuring the stability of the ruble, as well as other tasks of the Bank of Russia established by federal laws ". Such a clarification of the legal status of the Bank of Russia's property will make it possible to more effectively protect the Bank of Russia's assets abroad in cases where they are arrested or levied on the claims of foreign creditors against the Russian Federation. This is evidenced by the scandal with the Swiss company "NOGA". Failure to comply with the decision of the Stockholm court in 1997 led to the fact that in May 2000, in order to secure a claim against the Russian Federation, the accounts of the Bank of Russia and a number of Russian companies in French banks were frozen. As noted by S.A. Golubev and G.I. Luntovsky, “this example clearly shows how important it is to preserve the independent status of the Bank of Russia and in no case allow the possibility of identifying its assets with the property of the Russian Federation. The decisions of foreign courts that considered and rejected the claims of the NOGA company were based precisely on the special constitutional status Bank of Russia and its property, as specifically indicated in the texts of the decisions." Above, we noted the need to change the norm of Art. 2 of the Law on the Bank of Russia, according to which the Central Bank must be liable for the obligations of the state, if this is provided for by federal laws. In our opinion, this provision may violate the constitutional guarantees for the independent exercise of the function of protecting and ensuring the stability of the ruble. In order to prevent this, it would be expedient to state the specified norm in the following wording: "The state is not liable for the obligations of the Bank of Russia, and the Bank of Russia - for the obligations of the state, if they have not assumed such obligations or unless otherwise provided by federal laws that made in the presence of the conclusion of the Government of the Russian Federation and agreed with the Bank of Russia". This wording is based on the requirements established in part 3 of Art. 104 and in part 2 of Art. 75 of the Constitution of the Russian Federation. The rule on the participation of the Bank of Russia in the capital of credit institutions also needs some adjustment. The law on the Bank of Russia is limited only to a general indication of the possibility of obtaining income from participation in the capital of credit institutions (Article 10). It does not contain any specific rules on this issue. In view of the foregoing, it seems appropriate to supplement Article 7 with provisions on exercising control over the activities of those credit institutions in whose capital the Central Bank participates, and on the procedure for using the income received from such participation. In this regard, we also note the need to maintain the participation of the Bank of Russia in the capital of systemically important banks. The participation of the Bank of Russia in the capital of credit institutions ensures the stability of not only the banking system, but also the ruble, since an indispensable condition for maintaining the stability of any national currency is the uninterrupted and well-functioning functioning of the main or backbone elements of the country's banking system. The next source of income of the Central Bank are the operations provided for in Art. 45 of the Law on the Bank of Russia. This article provides the Bank of Russia with ample opportunities for banking operations, but, unfortunately, in some cases it introduces not entirely justified restrictions. In particular, this applies to the rules on granting loans for a period of not more than one year secured by securities, on the purchase and sale of checks, bills of exchange with maturities of not more than six months, on the purchase and sale of bonds, certificates of deposit and other securities with a maturity of no more than one year. Such restrictions, justified under conditions of hyperinflation, are hardly appropriate in a stable state of the national currency. The provision of Art. 26 of the Law on the Bank of Russia, according to which the Central Bank transfers 50 percent of the actually received balance sheet profit to the federal budget. This rule appears to be overly restrictive. It is designed mainly for the conditions of a stable state of the currency, and not its possible deterioration, when all the funds of the Bank of Russia should be directed exclusively to replenish its reserves. In view of the foregoing, it is proposed to state the first sentence of Art. 26 as follows: "The Bank of Russia transfers to the federal budget, if this does not contradict the task of protecting and ensuring the stability of the ruble, 50 percent of the actually received balance sheet profit for the year after the approval of the annual report of the Bank of Russia by the Board of Directors." Legal capacity of the Bank of Russia The Law on the Bank of Russia gives the Central Bank a fairly wide scope of civil legal capacity. Article 2 specifies that it is a legal entity. At the same time, its organizational and legal form is not determined. In this matter, the Law on the Bank of Russia follows the patterns that exist in almost all countries. The legislation of all states, without exception, recognizes the status of legal entities for central banks. The granting of such status is carried out directly by the laws on central banks, and not by acts of civil legislation. As a rule, the legislation does not define the organizational and legal form of central banks. The only exceptions are those few countries where central banks are established in the form of joint-stock companies (Austria, Hungary, Belgium, Greece, the Netherlands, Turkey, Switzerland, South Africa). At the same time, it should be emphasized that none of the countries recognizes the priority of civil legislation over laws on central banks. As a rule, legislation establishes the broadest forms of civil legal capacity of central banks. Thus, the Law "On the Bank of Belgium" provides that "the Bank may carry out all transactions and provide any types of services that correspond to the tasks assigned to it" (Article 13). The Reserve Bank of New Zealand Act states that "The Bank is a legal entity which cannot be wound up, bears a common seal and is granted the right to acquire, hold and dispose of movable and immovable property and to sue and be sued in court" ( part 2 article 5). The Law "On the National Bank of Slovakia" emphasizes that "the right to own property is exercised by the Bank of Slovakia in the same way as private legal entities in the field of property relations" (part 4, article 1). The question of the legal capacity of the European Central Bank is resolved in a similar manner: "The European Central Bank ... in each of the Member States of the European Community shall have the broadest legal capacity that a legal person in such a State may have; it may, in particular, acquire and alienate movable and immovable property and be a party to litigation". In general, under the current legislation, the Bank of Russia is endowed with fairly broad rights in the field of civil law regulation. As noted above, the Central Bank has an authorized capital and other property that it owns, uses and disposes of independently (Article 2 of the Law on the Bank of Russia). Of particular note is the fact that the Law on the Bank of Russia proceeds from the principle of unity of civil legal capacity of the Central Bank. The territorial institutions of the Bank of Russia (including the national banks of the republics) do not have the status of a legal entity, cannot make decisions of a regulatory nature, are not entitled to issue guarantees and sureties, promissory notes and other obligations without the permission of the Board of Directors. They operate on the basis of the Regulations on Territorial Institutions, which is approved by the Board of Directors (Article 84 of the Law on the Bank of Russia). Such a decision fully complies with the constitutional requirements, according to which the issues of financial, currency and credit regulation, as well as the issue of money (clause "g" of article 71) are transferred to the exclusive jurisdiction of the federation, and the Bank of Russia is defined as a single constitutional body that is endowed with clearly defined constitutional functions (parts 1 and 2 of article 75). The most complete Law on the Bank of Russia regulates the issue of the Central Bank's operations. In particular, he has the right: ▪ provide loans for a period of no more than one year, secured by securities and other assets; ▪ buy and sell checks, promissory notes and bills of exchange, which are usually of commercial origin, with maturities of no more than six months; ▪ buy and sell government securities on the open market; ▪ buy and sell bonds, certificates of deposit and other securities with maturities of no more than one year; ▪ buy and sell foreign currency, as well as payment documents and obligations in foreign currency issued by Russian and foreign credit organizations; ▪ buy, store, sell precious metals and other types of currency assets; ▪ carry out settlement, cash and deposit operations, accept securities and other valuables for storage and management; ▪ issue guarantees and warranties; ▪ carry out transactions with financial instruments used to manage financial risks; ▪ open accounts in Russian and foreign credit institutions on the territory of the Russian Federation and foreign countries; ▪ issue checks and bills in any currency; ▪ carry out other banking operations on your own behalf, unless prohibited by law (Article 45 of the Law on the Bank of Russia). The analysis of the above norms allows us to draw the following conclusions. Article 45 leaves open the list of operations that can be carried out by the Bank of Russia. At the same time, the necessary restrictions are set in this case. Such operations, firstly, must be of a banking nature, secondly, they must comply with the requirements of the law, and thirdly, they must not be prohibited by law. In addition, federal laws may impose restrictions on the Bank of Russia's transactions on a commission basis (Article 45). We note in this regard that transactions with the federal budget and state off-budget funds, with the budgets of the constituent entities of the Russian Federation and local budgets, as well as operations to service the public debt and operations with the gold and foreign exchange reserves of the Russian Federation are carried out without charging a commission (Article 23). In general, the regulation of civil law forms of banking operations seems to be quite reasonable and needs only individual adjustments, mainly related to temporary restrictions on a number of operations carried out by the Bank of Russia. The Law on the Bank of Russia takes a more rigid approach to the issue of regulating other forms of civil law transactions. As noted above, the participation of the Bank of Russia in the capital of credit institutions is allowed only in cases directly established by law. At the same time, the Law obliges the Bank of Russia to ensure its participation in the capital of Sberbank, Vneshtorgbank and a number of foreign banks in the amount of at least 50 percent plus one share. The latter decision seems to be justified, taking into account the tasks of strengthening the banking system as a whole, protecting the savings and deposits of citizens, and, ultimately, ensuring the stability of the ruble. Restrictions are also provided for the participation of the Bank of Russia in the capital of other (non-banking) organizations. It is allowed only in the capital of those organizations that ensure the activities of the Bank of Russia, its institutions and employees, as well as in other cases provided for by federal law (Article 7 of the Law on the Bank of Russia). At the same time, the Law on the Bank of Russia does not regulate the procedure for the participation of the Central Bank in the capital and activities of international organizations, limiting itself only to a general indication that cooperation in the monetary, foreign exchange and banking spheres with international organizations and central banks of foreign states is regulated by international treaties , individual federal laws and interbank agreements (Article 8). The Law on the Bank of Russia contains a number of rules that delineate the competence of the Central Bank's management bodies to exercise civil rights and obligations. Basically, the relevant decisions are taken by the Chairman of the Bank of Russia. He ensures the implementation of the functions of the Bank of Russia, acts on its behalf and represents its interests in relations with state authorities, organizations and institutions (Article 18). And only in certain issues does the Law limit the competence of the Chairman of the Bank of Russia. The Board of Directors has been placed under the jurisdiction of, inter alia, matters relating to the creation and liquidation of institutions and organizations of the Bank of Russia; on participation in international organizations; on participation in the capital of organizations supporting the activities of the Bank of Russia, its institutions, organizations and employees; on determining the limits of operations on the open market; on the sale and purchase of real estate to support the activities of the Bank of Russia (Article 16 of the Law on the Bank of Russia). Such a delimitation of the competence of governing bodies seems to be generally justified, and only some of its provisions need to be clarified. In particular, it is necessary to supplement the rule on the purchase and sale of real estate, limiting its effect either on real estate objects or on the amounts of transactions. It is necessary to do this in order not to burden the Board of Directors with questions about the acquisition or alienation of inexpensive or insignificant real estate. Concluding the analysis of the status of the Bank of Russia in terms of the criteria for its independence, it should be noted the need to change a number of norms of the current legislation. However, unfortunately, such a task is not on the agenda. On the contrary, there is a real threat of cancellation of many guarantees of the independence of the Bank of Russia, as evidenced by the draft amendments to the Law on the Bank of Russia. Topic 8. BANKING SUPERVISION The concept and essence of banking supervision Banking supervision is the supervision of the Bank of Russia over the execution and compliance by credit institutions with the legislation governing banking activities, the regulations established by it, including financial standards and accounting and reporting rules. The essence of banking supervision is to verify the compliance of the decisions and actions of a credit institution with the laws governing banking activities and the regulations of the Bank of Russia. In fact, this is supervision over the implementation of normativity in banking. Its significance lies in the fact that it is used by the Bank of Russia to manage risks in the banking system. The Bank of Russia does not have administrative powers to manage commercial banks and other credit institutions. He has no right to interfere in the activities of commercial banks and other credit organizations, since they are independent and operate on the basis of contractual relations. Therefore, the Federal Law did not grant the Bank of Russia the authority to control the expediency of the activities of credit institutions. He was granted the right to exercise supervision, that is, to observe the credit institution from the point of view of the normativity of its decisions. This means that the Bank of Russia can check whether a credit institution complies with the laws, financial regulations and regulations of the Bank of Russia. Remote monitoring is monitoring the activities of credit institutions on the basis of banking and, in particular, accounting documents submitted by it (balance sheets, profit and loss statements, payment documents, etc.). To solve these problems, divisions of banking supervision have been created in the system of the Bank of Russia - the Department of Prudential Supervision, the Department for Licensing Credit Institutions and some other departments, and in territorial institutions - departments (departments) for regulating banking activities. Contact supervision is an inspection of the activities of credit institutions with access to their locations and the study of all banking documents requested by a group of inspectors. For these purposes, special divisions are created in the structure of the Bank of Russia - the Department for Inspection of Credit Institutions and the corresponding structures in its territorial institutions (departments, departments). Both types of banking supervision should be interconnected. The nature of this relationship is important from the point of view of the speed of supervision and the reliability of its results. Objects of banking supervision The objects of banking supervision are that part of the banking system and banking activities that, in accordance with the requirements of laws and in the manner prescribed by them, must be controlled by the Bank of Russia. The correct definition of the objects of banking supervision is important for determining the competence of the Bank of Russia to conduct inspections of the activities of credit institutions. In addition, the precise definition of the objects to be inspected makes it possible to optimize the Bank of Russia's expenses on banking supervision. Banking supervision in the form in which it is currently provided for in Russian legislation does not cover the entire banking system, but only applies to credit institutions. In other words, its object is only the lower level of the banking system. The top level of the banking system - the Bank of Russia - is not subject to supervision by any body whatsoever. The Federal Law "On the Central Bank of the Russian Federation" provides for some elements of control by the State Duma over the Bank of Russia. In fact, they relate to the status of the Bank of Russia. In other countries, there is a so-called cross-control over the functioning of the banking system. This means that the banking system is controlled not only by the central bank, but also by various government organizations. Therefore, the reports of the central bank and all its activities are audited by the state. The independence of the Bank of Russia must be supplemented by its responsibility for the correctness of its decisions, including in the field of banking supervision. Credit organizations and their activities as an object of banking supervision In the organization and activities of credit institutions in accordance with the objectives of banking supervision and the way they are enshrined in the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", several subjects of banking supervision can be distinguished. The first subject of banking supervision that we consider, and in particular bank audits, is the compliance by a credit institution with the legislation and banking rules established by the Bank of Russia. The legislation does not clearly state which laws the Bank of Russia should check compliance with. Therefore, this question is interpreted by experts restrictively. At best, purely banking laws are taken into account, primarily the Federal Law "On Banks and Banking Activities", which, of course, is not enough, since, as was said, banking activities are regulated by regulations of various branches of law. In this regard, the role of legal departments in the Bank of Russia becomes quite obvious, being able to determine the entire composition of regulations, the violation of which creates risks in banking activities. However, the role of lawyers, unfortunately, is small, therefore, something similar to a niche is being created in the activities of banks, into which the Bank of Russia does not look. This is where the most common abuses in credit institutions originate, which sooner or later become the cause of their collapse, as well as the collapse of clients. With regard to supervision and inspection of the implementation of banking rules, there are also many unresolved problems here. First, the Bank of Russia annually issues about a thousand different acts. These acts, as already mentioned, are by no means flawless in terms of legal technique in all cases. In addition, they are not systematized enough. In this regard, problems arise in the accessibility of regulations not only for the general consumer, but also for the employees of the Bank of Russia themselves. Secondly, there is no clear division and specialization in banking supervision itself, and most importantly, in the inspection of credit institutions, which reduces its quality. The second subject of banking supervision is the fulfillment by the credit institution of the financial standards stipulated by the legislation and regulations of the Bank of Russia. Regulations are technical standards. This is a banking technique, a technology for managing a credit institution, the correct construction of which eliminates the risk of illiquidity and insolvency in relation to creditors and bank customers. The third subject in the object of banking supervision is checking the correctness of accounting and the reliability, provided for by the laws and regulations of the Bank of Russia, of the reporting of credit institutions. This question is considered central. Unlike legal and financial-analytical problems, the problem of auditing accounting and reporting reliability, perhaps due to its simplicity, attracts the most attention during audits. In this sense, supervision is still only at the first stage of its development. This is the stage of comparisons and isolated assessments. Tasks and functions of banking supervision The tasks and functions of banking supervision are specified and determined by the goals and objects of banking supervision. The tasks of banking supervision are the inspection by the Bank of Russia of those objects that are determined by the subject of banking supervision. The three main subjects correspond to the three tasks of banking supervision: ▪ checking compliance with laws and banking regulations, ▪ checking compliance with economic standards, ▪ audit of accounting and reporting. The functions of banking supervision are the directions of the documentary or direct verification of the activities of a credit institution carried out by the Bank of Russia. According to banking specialists, there is a certain list of these functions: ▪ study of legal issues of the bank’s activities and its compliance with the charter and license; ▪ checking the credit institution's compliance with the provisions of the banking license; ▪ analysis of the bank’s balance sheet and reporting; ▪ study of the dynamics of individual indicators of banking activity and the bank’s development prospects; ▪ verification of decisions of management bodies; ▪ checking the work of the audit commission; ▪ analysis of contractual relations of a credit institution with clients, depositors, debtors and creditors; ▪ checking compliance with the contractual obligations of the credit institution in its relationships with clients and depositors, debtors and creditors; ▪ analysis of methods for placing own and temporarily borrowed funds, checking the fulfillment of obligations under contracts (loans, deposits, conversion, currency transactions, securities); ▪ review of risk management; ▪ checking the formation of reserves; ▪ verification of guarantees; ▪ checking the validity and legality of income generation; ▪ study of contracts and causes of losses for certain types of activities; ▪ identification of facts of distortion of income and expenses, detection of possible unproductive losses, including those associated with the results of the application of sanctions for violation and non-compliance with contractual obligations; ▪ identifying the causes, motives and circumstances that contributed to banking violations; ▪ clarification of the purposes of violation of regulations of the Central Bank of the Russian Federation, clarification of the reasons for the distortion of reporting indicators, economic standards, ▪ finding out the reasons and purposes of the bank conducting unprofitable, ineffective banking operations and transactions, primarily creating an increased risk and entailing a violation of economic standards; ▪ checking the credit institution's compliance with the Bank of Russia's regulations. Banking Supervision Units In the Bank of Russia system, two groups of divisions can be distinguished: a) regulatory; b) supervisory. Regulatory departments include, for example, departments and their respective departments, such as the department of issuing and cash transactions, the department of regulation of monetary circulation, the department of licensing; legal department, administrative department, accounting and reporting department, securities department; department of currency regulation and currency control; department of informatization, various kinds of settlement and cash centers and some other subdivisions. The supervisory block consists of two departments and their respective departments, departments in the territorial offices of the Bank of Russia: the Banking Supervision Department and the Department for Inspection of Credit Institutions. There are no absolute divisions between regulatory and supervisory blocs. They are not independent in making final decisions and are not isolated from each other. For example, the licensing department, while carrying out a state audit of a credit institution, is simultaneously obliged to verify the accuracy of the facts that are reflected in the documents submitted by the founders. So, when issuing a general license, the licensing unit can resort not only to checking the documents submitted by the heads of the credit organization, but also send a corresponding request to the banking supervision unit or to the inspection unit of credit organizations in order to conduct an appropriate check. The federal law "On the Central Bank of the Russian Federation (Bank of Russia)" provides for the possibility of creating a special supervisory body under the Bank of Russia. In part 4 of Art. 55 of this Law says that the supervisory and regulatory functions of the Bank of Russia can be carried out by it directly or through a banking supervision body created under it. It further states that the decision to establish this body is made by the Board of Directors. The advisory body, which discusses the results of the audit of a credit institution, is not provided for by law. In accordance with the Instruction, inspections of credit institutions and their branches are carried out by representatives of the Bank of Russia authorized by the Board of Directors: the Chairman of the Central Bank of the Russian Federation and his deputies; heads and employees of the Department of Banking Supervision of the Bank of Russia, the Main Directorate for Inspection of Commercial Banks of the Bank of Russia, the Main Directorate for Foreign Exchange Regulation and Foreign Exchange Control of the Bank of Russia; heads of main departments (chairmen of national banks) of the Bank of Russia and their deputies; heads and employees of departments of banking supervision, inspection of commercial banks, as well as currency regulation and currency control of the main departments (national banks) of the Bank of Russia. Inspection of credit institutions When inspecting credit institutions, the following stages can be distinguished: ▪ Planning inspections ▪ Making a decision on inspection and documenting it ▪ Solving organizational issues related to the entry of inspection groups into credit institutions ▪ Study by the inspection team ▪ documents submitted by the credit institution ▪ Preparation of a draft inspection report ▪ Study of the draft act in the functional divisions of the Bank of Russia ▪ Finalization of the inspection report ▪ Making a decision on the act ▪ Sending the inspection report to the management of the Bank of Russia (territorial institution) ▪ Familiarization of the head of the credit institution with the inspection report ▪ Signing of the inspection report by the management of the credit institution. Inspection is an integral part of banking supervision, and in order to correctly determine its functions and structure, it is necessary to find out what goals it pursues or should pursue. There are some goals that it should not pursue. The objectives of the inspection of credit institutions are formulated in Art. 55 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", but ultimately due to the goals of the Bank of Russia, which are enshrined in Art. 3 of the same Law, so the analysis of the entire tree of goals begins with them. As mentioned above, the goals of the Bank of Russia are: maintaining the purchasing power of the ruble, strengthening and developing the banking system, and ensuring the smooth and efficient functioning of the settlement system. The next level of goals, which are predetermined by the goals of the Bank of Russia, is supervision over the state of the banking system as such. This means that the Bank of Russia is obliged to manage systemic risks in the banking system. In order to manage systemic risks, the Bank of Russia carries out banking regulation and banking supervision. Banking regulation means that the Bank of Russia sets financial standards for banks, and banking supervision means that the Bank of Russia oversees specific banks and inspects their banking activities. Therefore, the objectives of the inspection of the Bank of Russia are subordinate to the objectives of banking supervision, and the objectives of banking supervision are subordinate to the objectives of banking regulation. A significant improvement in the organization of the inspection of credit institutions is precisely that not only the credit institution is inspected, but at the same time those credit institutions that are its correspondents. Then it will be possible to more effectively prevent systemic risks fraught with crises and financial shocks in society. The immediate objectives of the inspection of credit institutions are formulated in Art. 55 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", which literally says the following: "The Bank of Russia exercises constant supervision over compliance by credit institutions with banking legislation, Bank of Russia regulations, in particular the mandatory standards established by them. The main goal of banking regulation and supervision - maintaining the stability of the banking system, protecting the interests of depositors and creditors. The Bank of Russia does not interfere in the operational activities of credit institutions, with the exception of cases provided for by federal laws. " The general purpose of the inspection is to provide the Bank of Russia with information about the real situation of the credit institution. This general goal includes two specific goals. First, the inspection process should ascertain the state of the credit institution and its prospects, and secondly, it is necessary to collect and analyze information that allows one to draw a conclusion about the impact it has on other credit institutions. Each of the goals is divided into parts defined in the law: it is the observance of laws and other regulations; acts, economic standards and rules of accounting and reporting. According to these purposes, two general objects of inspection should be distinguished: a) a credit institution as such; b) system communications of credit organizations. In each of these objects, in accordance with private goals, three subjects of inspection of banking activities can be distinguished: a) legal relations, b) financial relations; c) accounting and reporting Unfortunately, the practice is such that banking inspection is limited mainly to the study of the first of these objects - the credit organization as such. The main drawback of the inspection is that the second object is practically unexplored - the banking system, that is, the relationship between specific credit institutions. The objectives of inspecting credit institutions are provided for in Bank of Russia Instruction No. 19 dated February 1996, 34 "On the Procedure for Conducting Inspections of Credit Institutions and Their Branches by Authorized Representatives of the Central Bank of the Russian Federation (Bank of Russia)". Inspections of credit institutions and their branches are carried out by representatives of the Bank of Russia authorized by the Board of Directors. Chairman of the Central Bank of the Russian Federation and his deputies; heads and employees of the Department of Banking Supervision of the Bank of Russia, the Main Directorate for Inspection of Commercial Banks of the Bank of Russia, the Main Directorate for Foreign Exchange Regulation and Foreign Exchange Control of the Bank of Russia; heads of main departments (chairmen of national banks) of the Bank of Russia and their deputies; heads and employees of departments of banking supervision, inspection of commercial banks, as well as currency regulation and currency control of the main departments (national banks) of the Bank of Russia. Instruction No. 34 provides that inspections of credit institutions and their branches on behalf of the Bank of Russia are appointed by: the Chairman of the Bank of Russia or his deputy in charge of the division carrying out the inspection; the head of the Main Territorial Department (National Bank) of the Bank of Russia - in relation to any credit institutions and their branches located in the area of operation of this territorial institution of the Bank of Russia If the credit institution is located in the area of operation of one territorial institution of the Bank of Russia, and its branches activities of other territorial institutions of the Bank of Russia, inspections of this credit institution, as well as its branches, are appointed by the relevant heads of the territorial institutions of the Bank of Russia with the obligatory informing of the institution of the Bank of Russia in whose territory the credit institution is located. Cancellation of the initiated inspection is carried out by a written order of the person who ordered the inspection, indicating the reasons for the cancellation (clause 4) In cases stipulated by the current legislation, inspections of credit institutions and their branches are carried out in coordination with law enforcement and financial authorities (clause 5). Procedure for Inspection of Credit Institutions Issues of inspection of credit institutions in the most general form are provided for in Art. 55 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". At present, Bank of Russia Instruction No. 19 dated February 1996, 34 "On the procedure for conducting inspections of credit institutions and their branches by authorized representatives of the Central Bank of the Russian Federation (Bank of Russia)" is also in force. Grounds for conducting inspections. The question of the grounds for conducting inspections in Russian banking practice, unlike foreign ones, is quite formalized. Inspections of credit institutions and their branches are carried out on the basis of inspection plans drawn up for each quarter by the structural divisions of the Bank of Russia and its territorial institutions, as provided for by Instruction No. 34, and approved by the heads of these divisions and institutions. Unscheduled inspections are carried out at the direction of the Chairman of the Bank of Russia or his deputies in charge of the divisions listed in the Instruction, the head of the territorial branch of the Bank of Russia. Note that both unscheduled and scheduled inspections can be initiated by many heads of structural divisions, who, in turn, receive relevant information about the financial and legal condition of the bank from their subordinate divisions and specialists. Therefore, in practice, the circle of initiators of bank audits is very wide. Instruction No. 34 provides that "inspection plans include, first of all, credit institutions in respect of which there is evidence of their unstable financial situation or gross violations of the rules governing their activities, as well as credit institutions and their branches that have not been inspected by the Bank Russia or its territorial offices for more than two years. The Instruction also states that, if necessary, audit plans include conducting audits of currency and other valuables located in cash vaults and cash desks of credit institutions and their branches, as well as under the responsibility of cash workers of operating cash desks and cash desks for preparing advances with carry-over balances, and exchange offices. The procedure for the Bank of Russia to conduct an audit of a credit institution is not defined in the current legislation. This procedure is regulated by the Bank of Russia - its Instruction, which provides the basic rules for organizing and conducting inspections of credit institutions and their branches. The decision to appoint an audit is made in writing. It indicates the full name, location, registration number of the audited credit institution, as well as branches, type of audit, composition of the working group, start and end dates of the audit. At the same time, the task for the working group is also approved, which should provide for specific verification issues. If necessary, the assignment specifies the numbers of balance and off-balance accounts, transactions to be verified, a list of documents subject to selective verification, the period for which these documents and transactions will be verified. According to the Instructions, other divisions of the Bank of Russia may also participate in preparing assignments for a working group in specific areas. The head of the working group, either independently or in agreement with the head who appointed the check, supplements or even refines the task for the check. Inspections of credit institutions and their branches are carried out comprehensively or in separate areas of their activities. Comprehensive inspections of credit institutions and their branches should include verification of the reliability of reports submitted to the Bank of Russia; compliance of the operations performed with the banking legislation and regulations of the Bank of Russia; compliance by this credit institution with mandatory economic standards established by the Bank of Russia in accordance with the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". The Instruction states that comprehensive inspections of a credit institution with a branch network are carried out on a consolidated basis, that is, they are carried out simultaneously in a credit institution, as well as in its branches (all, if their number does not exceed five, or some of them with the worst performance ). Inspections of credit institutions and their branches are carried out within the timeframe that is necessary and sufficient to fulfill the established task. At the same time, comprehensive inspections of credit institutions are carried out within a period of up to 60 days, and inspections in certain areas of activity of a credit institution or its branches - up to 30 days. It is allowed to extend these periods by the head who ordered the inspection, but not more than 10 days. To inspect a credit institution and its branches, authorized divisions form working groups of their employees, as well as employees of other structural divisions of the Bank of Russia and its territorial branches, taking into account the proposals of the heads of these divisions. The head of the working group is appointed from among the members of the authorized units. The heads of structural subdivisions submit proposals to the authorized subdivisions on conducting inspections on issues within their competence. Members of the working group must have a special (economic, legal, technical) education necessary to perform the work assigned to them. The working group cannot include persons who own a share (shares) of the audited credit institution or have received a loan in it, or have placed their deposits, or have close relatives (mother, father, wife, husband, children, sisters, brothers ) holding senior positions in the management bodies of the credit institution, branches. The size of the working group is determined depending on the amount of work to be done. The working group inspecting a credit organization has the right to: a) enter the premises of the audited credit institution, including the premises used for storing documents (archives), cash and valuables (cash vaults), computer data processing (computer room) and storing data on machine media, with the involvement of employees of the audited credit institution to leave these premises; b) use their own organizational and technical means necessary for carrying out the check, including computers, floppy disks for them, duplicators, calculators, radiotelephones; bring in and take out these technical means from the building of the Trusted Credit Organization (its branches); c) receive from the heads and authorized employees of the audited credit institution, its branches the documents necessary for verification, available in this credit institution, branches, including: constituent documents; minutes of meetings of the management bodies of the audited credit institution and its branches; orders and other administrative documents issued by the heads of this credit institution, its branches, divisions, decisions of their credit committees; acts of internal control; acts of audits of supervisory and regulatory authorities; primary and other accounting, accounting and reporting and monetary settlement documents, information about operations, accounts and deposits; documents related to computer support for the activities of the audited credit institution, its finals (description of data structures on machine media, program algorithms and technical instructions for the tasks being solved, lists of output forms with printed samples, a log of registration of changes to the software, a log of failure situations in the solution tasks (for any requested date), etc.); d) receive references and clarifications from the managers and employees of the audited credit institution, its branches and subdivisions, as well as written explanations in case of non-fulfillment or improper fulfillment by them of the requirements of banking legislation or Bank of Russia regulations; demand a demonstration and get acquainted with the operation of the hardware and software used by this credit institution and its branches; e) if necessary, independently or with the help of the audited credit institution, its branches, make copies of the received documents, including (on its own magnetic media) copies of files, demand and receive copies of any records stored in local area networks and autonomous computer systems, and also transcripts of these records; f) present other requirements to the managers and employees of the audited credit institution based on their duties stipulated by the cited Instruction. The working group is obliged not to disclose information classified by law as banking, commercial and other secrets, as well as to ensure the safety and return of documents and files received from the credit institution, its branches, to acquaint the heads of the audited credit institution, its branches with the results of the audit, to draw up the results of the audit in accordance with the act. The credit institution and its branches have the right to require the working group to comply with the specified obligations, to appeal against the actions of the working group to the head who appointed the inspection. The head of the working group for the verification of a credit institution, its branches distributes duties among the members of the working group (drawn up in a separate document), establishes the procedure and mode of their work, taking into account production needs, controls the fulfillment of the task assigned to them, gives them binding instructions on the preparation of materials. The right to set additional tasks for the members of the working group and redistribute their duties, take over the inspection of any area of activity of the given credit institution (its branch), suspend the inspection in case of opposition to it from the audited credit institution, its branches or other third parties. The head of the working group may request and receive from the participants (shareholders) and clients of the audited credit institution, with their consent, the information necessary to establish the actual circumstances, including to confirm the data contained in the documents received from the audited credit institution, its branches. The head of the working group has the right during the inspection, in agreement with the head of the credit institution, to seal individual office premises of the inspected credit institution and its branches, if at the moment it is impossible to otherwise ensure the safety of documents, cash, valuables or to inspect the relevant area of activity of this credit institution (its branch). To do this, use the seal of the relevant territorial office of the Bank of Russia or directly the Bank of Russia. The head of the working group is not entitled to oblige a member of the working group to change his conclusions or assessments based on the materials of his audit. In case of disagreement with these conclusions and assessments, the head of the working group may organize a re-inspection of the relevant section of the credit institution's activity (its branch). However, if a member of the working group insists on his initial conclusions and assessments, the head of the working group is obliged to immediately inform the head who appointed the inspection, who has the right, based on the available materials, either to confirm the disputed conclusions and assessments, or to recognize them as completely or partially unfounded and then appoint a second check. The results of the re-inspection are final, unless otherwise decided by the manager who appointed this inspection. Consider the duties in the form in which they are enshrined there. As stated in the Instruction, credit institutions (their branches) during the inspection period must facilitate its conduct, and, in particular, they are obliged to provide for this period each member of the working group with unhindered (upon request) entry and exit from the building and other office premises of the inspected credit institution and its branches throughout the working day, and if necessary - after hours. For unimpeded passage, it is necessary and sufficient for a member of the working group to present to the representative of the security or security service of the inspected credit institution (branch) his official ID or a pass issued by the Bank of Russia or its territorial office. In the interest of strengthening the rule of law, it should be provided that if a member of the working group is replaced during the audit period, then in this case the territorial branch of the Bank of Russia draws up this replacement with a document of strict accountability and sends information about this to the appropriate division of the central office. If the replacement is connected with the removal of a member of the working group from conducting an audit, then in this case a reasoned decision of the head who ordered the audit should be sent to the central office of the Bank of Russia. Further, Instruction No. 34 states that none of the managers or employees of the audited credit institution, its branches, except in cases established by federal law, is entitled to: conduct a personal search of the members of the working group, official documents and organizational and technical means in their use, take away these documents, things, organizational and technical means, otherwise deprive the working group of the opportunity to use these items during the inspection, require the members of the working group to give any oral and written obligations / present other requirements to them that are not provided for by the commented Instruction. Instruction No. 34 regulates in detail the obligations of a credit institution. The audit begins with the fact that on the first day of visiting a credit institution, its management must organize a meeting of the working group with the head and chief accountant of the audited credit institution (its branch) or persons replacing them, as well as with the heads of the main departments. At this meeting, the head of the working group must familiarize all its participants with the powers of the working group and the obligations of the audited credit institution (branch). The head of a credit institution (branch) must take specific measures to fulfill the specified obligations. According to the Instruction, the members of the working group should be allocated a workplace in an office space isolated from the employees of the credit institution and unauthorized persons, equipped with the necessary furniture, a fireproof cabinet for storing documents, a computer equipped with software for the tasks being solved in this credit institution (branch) and an appropriate base data generated at the time of verification, calculators, means of multiplying equipment, telephone communications and fire alarms, doors and windows with the necessary locking devices. For the entire inspection period, entry into this room is allowed only with the permission of the working group. The heads of the credit organization are obliged to notify the employees of the audited credit organization and its branches about the beginning of the audit, the location and telephone numbers of the working group. The instruction provides that, at the request of the head of the working group, a notification may also be sent to individual participants (shareholders) and customers of a credit institution, its branches. The credit institution is obliged to issue, at the request of the working group, all the certificates, explanations and documents it needs, if necessary, make copies of them or provide the working group with the opportunity to make these copies independently, certify the certificates and copies of documents with the signature of the responsible official and the seal of this credit institution (branch) . None of the managers and other employees of the audited credit institution (branch) has the right to refuse to issue the necessary documents to the working group in connection with commercial or other secrets, unless otherwise established by federal law. Non-fulfillment or improper fulfillment by the audited credit institution of the obligations stipulated by Instruction No. 34 is considered as counteraction to the conduct of the audit. Each such case is drawn up by an act in the prescribed form. This act is signed by the head of the working group and on the same day is submitted to the head who appointed the inspection, who, within three days from the date of signing the act, must make a decision on it and inform the head of the working group about it. This act may be the basis for suspending the audit, as well as for taking the prescribed measures of influence against the audited credit institution (its branch). An audit of a credit institution and its branches may begin suddenly or with prior notice to the head of the relevant credit institution (its branch). The decision on this issue is made by the head who appointed the check, or on his behalf by the head of the structural unit authorized to conduct this check. Notification must be made in writing or orally followed by written confirmation. This notification may contain a requirement to prepare materials and documents necessary for verification in advance, as well as to carry out other preparatory measures provided for by Instruction No. 34 (allocation of office space for the working group, equipping it with technical means, etc.). An audit of a credit institution and its branches should begin with the members of the working group presenting their powers to the head of the given credit institution (branch). These powers are confirmed by the corresponding order, which is issued to the working group by the head who appointed the check. An instruction to inspect a credit institution (branch) is issued in the prescribed form (given in Appendix 2 to Instruction No. 34). The signature of an official on the order shall be certified by the seal of the Bank of Russia or its respective territorial office. The specified instruction must be registered with the structural unit authorized to conduct this verification. If the working group is formed on a mixed basis, the order is subject to registration with the relevant inspection unit. The verification of a credit institution and its branches is carried out by a working group in accordance with banking legislation and regulations of the Bank of Russia. Specific forms and methods of checking banking operations and documents are determined by the members of the working group on the spot, taking into account the instructions of the head of this group, as well as the recommendations of the head of the structural unit authorized to conduct the check of this credit institution (its branches), and the head who appointed this check. Documents and other materials requested by the working group are delivered (transferred) by the credit institution (its branch) to the working place of the members of the working group within the terms and procedure established by this working group. At the end of the working day, the specified documents and materials remain in the office, designed to accommodate the working group, and, if necessary, all or part of these materials and documents are returned daily to their places of permanent storage. Documents and materials are received and returned against signature in a special journal. At the end of the working day, the office space allocated for the accommodation of the working group must be locked, sealed and placed under the protection of the audited credit institution (its branch). Act of verification of a credit organization The act of checking a credit organization contains information about the main facts of its banking activities. Based on the analysis and generalization of these facts, the working group of the Bank of Russia formulates its conclusions about the observance or, conversely, about the violation by the credit institution of federal laws, financial standards and the requirements of the regulations of the Bank of Russia. As a result, the main conclusion is made about the financial situation in a credit institution. In accordance with the requirements of Instruction No. 34, based on the results of the audit of each credit institution (branch), an audit report is drawn up, which reflects all the main violations and shortcomings identified during the audit. As for violations, the grounds for making a conclusion about their presence or absence are contained both in the legislation and in the regulations of the Bank of Russia. The wording "shortcomings in the work of a credit institution" is found in various documents of the Bank of Russia, but there are no clear criteria for determining them. This is, as it were, a question of the assessment given by the working group to certain aspects of the activity of the credit organization it inspects. The term "shortcomings" is absent in the banking legislation, therefore, for shortcomings in the work of a credit institution should not be held accountable by banks. If the audit is complex (consolidated), then in this case an audit report is drawn up, which includes the materials contained in the audit report of the parent credit institution and the audit reports of its branches. Acts of inspections of branches are submitted to the head who appointed the inspection of the parent credit organization within 10 days from the date of their signing. In accordance with Instruction No. 34, audit reports are prepared within 30 days after completion of the audit of a given credit institution (branch), and a general report on a comprehensive (consolidated) audit of a credit institution - within 30 days after completion of the audit of its branches. The audit reports are signed by all members of the working group, and the comprehensive (consolidated) audit report is signed by the head of the working group that carried out the audit of the parent credit institution. The inspection report must be presented for review to the head of the credit institution (branch) whose activities were inspected. The specified manager is obliged to familiarize himself with the inspection report within 5 days and put his signature on it with the note “has read the report.” If there are objections, the head of the credit institution (branch) has the right to attach his written comments to the inspection report and before his signature make the reservation “comments are attached to ... l.” If the head of this credit institution (branch) refused to familiarize himself with the act or to sign the act, then the head of the working group must make the following note before his signature: "the head of the credit institution (branch) refused to familiarize himself with the act (or sign ) refused. The audit report of a credit institution (branch), including the comprehensive audit report, is the property of the Bank of Russia, and its content cannot be disclosed without the consent of the Bank of Russia, unless otherwise provided by federal law. The head of the working group is obliged to notify the head of the credit institution (branch) about this before familiarizing him with the audit report, about which the following note is made in the report before the signature of the latter: "the head of the credit institution (branch) has been warned that the audit report cannot be disclosed to third parties without consent of the Bank of Russia. The audit report is drawn up in at least three copies. The first copy is handed over to the head of the credit institution (branch) being audited, about which the following note is made in the second and third copies of the act: "the first copy of this act was handed over (the date is indicated) to the head of the credit institution (branch)". The second copy is transferred to the manager who appointed the audit for consideration and action, and the third copy remains for accounting and control in the structural unit that was instructed to conduct this audit. When checking a branch of a credit institution, as well as when checking carried out by a working group formed on a mixed basis, additional copies are compiled for their transfer, respectively, to the territorial office of the Bank of Russia at the location of the parent credit institution and to units whose employees were members of the mixed working group ( for the accounting). The act of checking a credit institution (branch), signed in accordance with the established procedure, immediately, but no later than five days from the date of its signing, is transferred by the head of the working group to the head who appointed this check. The general act of a comprehensive (consolidated) audit is submitted to the head who appointed the audit of the parent credit institution. The specified audit report is submitted together with a memorandum that briefly describes the state of affairs in the audited credit institution (branch), reports on the facts that are important for supervision purposes, but not noted in the audit report, and also provides data on the measures taken by the credit institution (branch) to eliminate identified violations and shortcomings. If the situation in the audited credit institution (branch) requires the application of the established measures of influence, the head of the working group may make proposals on the application of such measures. The head of the Bank of Russia or its territorial branch, who has appointed this inspection, is obliged not later than within two weeks, and in the case of a comprehensive (consolidated) inspection - within a month after signing the inspection report, to consider this act and make a decision on it. This decision is made on the basis of the opinion of the relevant division of banking supervision and taking into account the opinion of the division that conducted this audit. Based on the results of consideration of the audit materials, a letter with an assessment of its work should be sent to the credit institution (branch), which may contain the necessary recommendations, and in established cases, instructions to eliminate the identified shortcomings. Control over the implementation of instructions and recommendations sent to a credit institution (branch) is carried out by the banking supervision division. If necessary, a repeated inspection of this credit institution (branch) may be scheduled, which is carried out by the relevant authorized structural subdivision of the Bank of Russia or its territorial office. Instruction No. 34 states that "employees of the Central Bank of Russia and its territorial offices who take part in inspections of credit institutions (branches), as well as familiarize themselves with the materials of inspections, bear the responsibility established by law for violations of the legal rights of credit institutions and their clients." The draft act is being coordinated in the functional divisions. This state of affairs reduces the guarantees of the objectivity of the act and delays the verification. Intermediate links appear, which leads to bureaucratization of the entire procedure and can adversely affect not only the results of supervision, but also the position of the credit institution itself. In our opinion, draft acts should be directly sent to the head of the Bank of Russia or its territorial office who appointed the inspection. 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. TERMINOLOGICAL DICTIONARY Bank - a credit institution that has the exclusive right to carry out the following banking operations in aggregate: attraction of funds from individuals and legal entities to deposits, placement of these funds on its own behalf and at its own expense on the terms of repayment, payment, urgency, opening and maintaining bank accounts of individuals and legal entities. A bank guarantee is an ancock operation by virtue of which a bank, other credit institution or insurance organization (guarantor) gives, at the request of another person (principal), a written obligation to pay the principal's creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor, an amount of money upon presentation by the beneficiary of a written demand about its payment. A banking group is an association of credit institutions that is not a legal entity, in which one (parent) credit institution exercises, directly or indirectly (through a third party), a significant influence on decisions made by the management bodies of another (other) credit institution (credit institutions). The banking system of the Russian Federation includes the Bank of Russia, credit institutions, as well as branches and representative offices of foreign banks. Banking secrecy - information about transactions, accounts and deposits of customers and correspondents of a credit institution or the Bank of Russia. Banking operations - these are operations to attract funds from individuals and legal entities in deposits (on demand and for a certain period); placement of the attracted funds specified in clause 1 of part one of this article on its own behalf and at its own expense; opening and maintaining bank accounts of individuals and legal entities; making settlements on behalf of individuals and legal entities, including correspondent banks, on their bank accounts; collection of funds, bills of exchange, payment and settlement documents and cash services for individuals and legal entities; purchase and sale of foreign currency in cash and non-cash forms; attraction to deposits and placement of precious metals; issuance of bank guarantees; implementation of money transfers on behalf of individuals without opening bank accounts (except for postal orders). A bank holding company is recognized as an association of legal entities with the participation of a credit institution (credit institutions) that is not a legal entity, in which a legal entity that is not a credit institution (the parent organization of a bank holding company) has the ability to directly or indirectly (through a third party) exercise a significant influence on decisions taken by the management bodies of the credit institution (credit institutions). The bank's depositors are citizens of the Russian Federation, foreign citizens and stateless persons. Bank deposit (deposit) agreement - an agreement under which one party (bank), which has accepted the amount of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner stipulated by the agreement. Bank account agreement - an agreement by virtue of which the bank undertakes to accept and credit funds received to the account opened by the client (account holder), fulfill the client's instructions to transfer and issue the appropriate amounts from the account and conduct other operations on the account. Foreign bank - a bank recognized as such under the laws of a foreign state in whose territory it is registered. A credit organization is a legal entity that, in order to derive profit as the main goal of its activities, on the basis of a special permit (license) of the Central Bank of the Russian Federation (Bank of Russia), has the right to carry out banking operations provided for by this Federal Law. A credit organization is formed on the basis of any form of ownership as a business entity. Non-bank credit institution - a credit institution that has the right to carry out certain banking operations provided for by this Federal Law. Permissible combinations of banking operations for non-bank credit institutions are established by the Bank of Russia. Insolvency (bankruptcy) of a credit organization is its inability to satisfy the claims of creditors for monetary obligations and (or) to fulfill the obligation to make mandatory payments, recognized by an arbitration court. The governing body of a credit institution is the general meeting of its founders (participants), the board of directors (supervisory board), the sole executive body and the collective executive body. A representative office of a credit institution is its separate subdivision, located outside the location of the credit institution, representing its interests and protecting them. A representative office of a credit institution is not entitled to carry out banking operations. Interest rates - rates on credits, contributions (deposits) and commission fees on operations, established by a credit institution by agreement with customers, unless otherwise provided by federal law. Branch of a credit institution - its separate subdivision located outside the location of the credit institution and carrying out on its behalf all or part of the banking operations provided for by the license of the Bank of Russia issued to the credit institution. Author: Shevchuk D.A.
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