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§ 2. Complex character of legal regulation of bank activity

The analysis of the Russian legislation shows, that public relations in sphere of bank activity are regulated by norms of various branches of law. Thus norms constitutional, administrative, financial, civil law have the greatest value.

Separate questions of bank activity are regulated by norms international, criminal and the law of master and servant. The aforesaid specifies in complex character of the bank legislation including norms of various branches of law [34].

The major source of regulation of bank activity are the norms of a constitutional law representing the constitutional bases of bank activity of the credit organisations and activity of Bank of Russia for the Constitution of the Russian Federation posesses a leading place in legal regulation of bank activity. The constitution defines bases of economic system, system of public authorities in the Russian Federation, differentiations of terms of reference and powers between them. So, item 71 of the Constitution of the Russian Federation defines, that under the authority of the Russian Federation are an establishment of legal bases of the uniform market; financial, currency, credit, customs regulation, monetary issue, bases of a price policy; federal economic services, including federal banks; and also official statistical and book keeping.

Item 75 of the Constitution of the Russian Federation as the basic function of Bank of Russia defines protection and maintenance of stability of rouble, fixes a principle of independence of Bank of Russia from other public authorities, establishes the right of Bank of Russia on exclusive realisation of monetary issue. Articles 83 (the item "g") and 103 (ч.1, the item "in") define an order of appointment and clearing of a chairmanship of Bank of Russia. Besides, for regulation of bank activity other norms of the Constitution of the Russian Federation, fixed in item 8, 34 matter also; item 71 (items, "z"); item 74, 75; item 83 (the item "g"); item 103 (ч.1, the item "in"); item 104 (ch.); item 106 (the item "in"); items 114 (ч.1, the item), etc. These norms constitute a basis of the new scientific direction which have received the name «the constitutional economy» [35]. And as this set of the constitutional norms are understood not only concrete norms, but also

The principles constituting bases of the constitutional system, and also the norms defining human rights.

Norms of administrative law define functions of Bank of Russia on regulation of bank system and management of territorial establishments of Bank of Russia, and also its power on control and supervision of activity of subjects of bank activity, to decision-making on registration and realisation of licensing of the credit organisations. Is administrative-legal regulation of bank activity is shown also in an establishment of an order of application of sanctions to the credit organisations for infringements of federal acts, normative acts and instructions of Bank of Russia.

Financially-legal regulation covers as the legal relations developing in the course of financial activity of the state, and organizational and financial activity on accumulation, distribution and use by the state of money resources. Norms of the financial right define also monetary circulation bases in Russia, bases of currency regulation, settlement legal relations, financial (including bank and currency) the control.

Norms of the financial right regulate activity of the banks included in process of service of the budget, an order of release and registration of securities, and also a number of the relations connected with securities in which banks participate. The fiscal law which, in particular, regulates relations with participation of banks as tax bearers, concerns the financial right of tax agents, and as the organisations executing the commissions of tax bearers about transfer of tax and other obligatory payments in budgets also. [36] Besides, banks carry out separate agency powers under the control over observance by their clients of tax laws. [37]

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Norms of civil law define a legal status of participants of the civil circulation, including subjects of bank activity. Besides, these norms regulate fulfilment rules grazhdansko - legal transactions, including bank. [38]

In the civil legislation general provisions on obligations and the contracts applied in bank activity contain, and also special kinds of participation of banks and other credit organisations in civil matters are provided. Them concern: the bank guarantee, the contract of financial rent (leasing), the credit contract, the contract of the bank contribution, the bank account contract, clearing settlements, storage of values in bank or in the individual bank safe, etc. Hence, the bank legislation is based on the civil legislation which many norms or are applied in bank activity, or directly regulate it and directly concern it.

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Norms of the law of master and servant regulate mutual relations of banks and other credit organisations with the employees. It, in particular, questions of the conclusion and the termination of the employment contract, regulation of working hours and leave, a payment, a labour safety, social insurance and maintenance, observance of regulations, disciplines of work, disciplinary and a liability, questions on guarantees and indemnifications, etc.

Norms of criminal law protect bank activity from the socially dangerous acts named crimes. Some of them have direct reference to sphere of bank activity (illegal bank activity; illegal reception of the credit; illegal reception and disclosure of the data constituting commercial or bank secret, etc.), and others are possible in activity of the credit organisations. [39]

The integration processes which have mentioned the relations of the Russian banks and other credit organisations with foreign partners, in particular, numerous contacts between them, correspondent relations, joining to world payment systems, issue of the international plastic cards and traveller's cheques, work with foreign securities and an exit of the Russian banks on the world stock markets with the actions, and also working out of collective investment schemes, projects of development of financial and bank services, the offers directed on expansion of cooperation between banks and other credit organisations - all it results also to intensive international cooperation, base for which is the international law. In particular, international treaties are widely used for registration of the loans received by a Russian side from the International currency fund (IMF), the International bank of reconstruction and development (IBRD), the European bank of reconstruction and development (European Reconstruction and Development Bank). Russia has entered into agreements with the big number of the states about double taxation elimination. The important event was joining of Russia to point 8 of the Charter of IMF according to which the rouble has found a legal basis of its transformation into convertible currency. Other numerous agreements of Russia make on bank activity with the foreign states which form international legal base of integration of the Russian banks in world bank system considerable impact.

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The aforesaid gives the bases to approve, that the bank legislation is a specific structural formation in system of the Russian legislation which includes norms of the various branches of law regulating various aspects of activity of credit-bank system. Such structural formation one authors name complex branch of the legislation (E.P.Andreev [40]), others - complex otras -

I pour the rights (G.A.Tosunjan [41]). According to the author, the recognition of the bank legislation as complex branch of the legislation is indisputable.

Complex character of the bank legislation allows to carry to it along with special bank laws and other federal acts which contain the norms to some extent mentioning bank activity. The norms containing in GK the Russian Federation, in particular, concern them, UK the Russian Federation, TK the Russian Federation, the Law on exchange control [42] and some other. [43]

The special bank legislation includes the Law on Bank of Russia, the Law on banks, the Law on bankruptcy of banks [44], the Law on re-structuring of banks [45], and some other. They take a leading place among sources of legal regulation of bank activity, and the central place among them is occupied with the Law on Bank of Russia and the Law on banks.

The law on Bank of Russia defines main objectives, functions and powers, and also principles of the organisation and activity of Bank of Russia. The Civil-law status of Bank of Russia is fixed in item 2 of the given law. According to this article the Bank of Russia is the legal body, has the press with the image of the State Emblem of the Russian Federation and the name. Ustavnyj the capital and other property of Bank of Russia are the federal property. According to the purposes and is perfectly in order, established by the federal act, the Bank of Russia carries out powers on possession, using and the order property of Bank of Russia. Withdrawal and encumbrance by obligations of property of Bank of Russia without its consent is not supposed. The state does not answer for obligations Bank of Russia, and

The bank of Russia does not answer for obligations the state, except for cases when they have taken up such obligations or if other is not provided by federal acts.

The bank of Russia within the powers given to it by the Constitution of the Russian Federation and federal acts, is independent in the activity. In case of intervention in activity of Bank of Russia federal public authorities, public authorities of subjects of the Russian Federation and local governments, the Bank of Russia has the right to address in courts with claims about a recognition void legal acts of the specified bodies (item 5 of the Law on Bank of Russia).

Powers and functions of controls by Bank of Russia are defined in the chapter of III Law on Bank of Russia. [46]

The law on Bank of Russia provides an order of participation of Bank of Russia as legal person in capitals of credit, international and other organisations (article 7, 8), and also the list of operations which the Bank of Russia (the chapter XIII) can carry out.

In the chapter IX norms which regulate foreign trade activities of Bank of Russia contain.

Overall objective of bank regulation and supervision as it is specified in article 55 of the Law about Bank of Russia, maintenance of stability of bank system, protection of interests of investors and creditors of the credit organisations are. The bank of Russia carries out bank regulation and supervision of activity of the credit organisations in an order established by the chapter of X Law on Bank of Russia. It is thus established, that the Bank of Russia does not interfere with operative activity of the credit organisations, except for the cases provided by federal acts.

Bank Russia has powers on an establishment obligatory for the credit organisations of rules of carrying out of bank operations, conducting book keeping, drawing up and representation of the accounting and statistical reporting, economic specifications. Thus, as it is specified in item 57 of the Law on Bank of Russia, it is forbidden to demand from the credit organisations of performance not functions peculiar to them.

With a view of realisation of bank regulation, to Bank of Russia is accorded to apply a right influence measures to the credit organisations, provided in article 75 of the Law about Bank of Russia. The interdiction for realisation of separate bank operations, collecting of penalties, licence withdrawal, in particular, concern them for realisation of bank operations and some other measures of influence. Disputes arising thus come under to consideration in arbitration courts [47].

The bank of Russia organises clearing settlements. In article 80 of the Law about Bank of Russia it is provided, that the Bank of Russia is the body co-ordinating, regulating and licensing the organisation settlement, including clearing, systems in the Russian Federation. The bank of Russia is authorised to establish rules, forms, terms and standards of realisation of clearing settlements. Thus the aggregate term of clearing settlements should not exceed two operational days within the subject of the Russian Federation and five operational days within the Russian Federation.

The foreign currency as an instrument of payment is used at realisation of clearing settlements for the goods and services only in the cases established by federal acts.

The structure and principles of the organisation of Bank of Russia are fixed in norms of the chapter of XIII Law on Bank of Russia. Territorial establishments of Bank of Russia have no status of the legal person. As it is specified in Law article 84

0 Bank of Russia, their problems and function are defined by Position about territorial establishments of Bank of Russia, approved Board of directors of Bank of Russia.

Legal status and functions of commercial banks and other credit organisations are statutory about banks. This Law defines concept and kinds of the credit organisations, fixes structure of bank system and defines the list of the normative acts regulating bank activity, a procedure for registration of the credit organisations and licensing of bank activity, and also provides a number of other questions.

Among subordinate legislation standard legal acts to which traditionally carry decrees of the President of the Russian Federation, the governmental orders of the Russian Federation, certificates of the federal ministries and departments, it is necessary to specify in numerous normative acts of Bank of Russia as a special source of legal regulation of bank activity.

As it was specified above, according to item 6 of the Law on Bank of Russia, on the questions carried to its competence, the Bank of Russia publishes normative acts, obligatory for federal public authorities, public authorities of subjects of the Russian Federation and the local governments, all legal and physical persons. These certificates cannot contradict federal acts. They have no retroactive effect.

With a view of streamlining of the normotvorcheskoj activity the Bank of Russia has accepted Position about Bank of Russia from September, 15th, 1997 № 519 «About an order of preparation and coming into force of normative acts of Bank of Russia» [48] which operates now in edition of Instructions of Bank of Russia from June, 24th, 1998 № 262. [49]

According to item 1.2, the specified Position by normative acts of Bank of Russia certificates of Bank Russia directed on an establishment, change or cancellation of rules of law as constant or time predpisa - ny, obligatory for a circle of persons, defined by the Law on Bank of Russia and the present Position, calculated on numerous application in territory of the Russian Federation "are". The bank of Russia accepts normative acts on the questions carried to its competence by the Law on Bank of Russia and other federal acts.

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In Position it is said, that if the certificate of Bank of Russia contains one and more rules of law it concerns normative acts of Bank of Russia and comes under to acceptance according to the present Position and other normative acts of Bank of Russia, regulating an order of preparation and introduction in action of normative acts of Bank of Russia.

Thus the Law on Bank of Russia, the above-stated Position №519 do not provide an order and the form of interpretation of normative acts. This function is carried out by various letters and telegrammes of Bank of Russia. They explain sense of the rules of law containing in normative acts of Bank of Russia.

Are not normative acts following certificates of Bank of Russia: administrative certificates; certificates of interpretation of normative acts of Bank of Russia and (or) other standard legal acts of the Russian Federation in sphere of the competence of Bank of Russia if it is directly authorised to give interpretation to the specified regulatory legal acts; the certificates containing exclusively technical formats and other technical requirements; other certificates which are not answering to signs of the normative act of Bank of Russia, specified in Position item 1.2.

Position gives classification of normative acts of Bank of Russia (instructions, position, the instruction), and also establishes an order of their working out, acceptance, registration and publication. According to it normative acts of Bank of Russia can be published in shape:

Instructions if its maintenance is the establishment of separate rules on the questions carried to the competence of Bank of Russia;

Positions if its basic maintenance is the establishment it is system the rules connected among themselves on the questions carried to the competence of Bank of Russia;

Instructions if its basic maintenance is definition of an order of application of positions of federal acts, other standard legal acts concerning the competence of Bank of Russia (including published by it in the form of its instructions and positions).

Normative acts of Bank of Russia become effective from the date of their publication in the official publication of Bank of Russia - "the Bulletin of Bank of Russia". Only concerning normative acts of Bank of Russia, directly mentioning the rights, freedom or duties of citizens, the rule about their registration in the Ministry of Justice of the Russian Federation in an order established for registration of certificates of the federal ministries and departments operates.

The number of certificates of Bank of Russia, regulating bank activity, comes nearer now to 4000. [50] Quantity of operating certificates constitutes 2478, including Positions of Bank of Russia - 152, Instructions of Bank of Russia-369, and Instructions of Bank of Russia - 39.

Concerning control and supervising activity by Bank of Russia it is accepted only 1552 normative acts, from them continue to operate 792, including Positions of Bank of Russia - 109, Instructions of Bank of Russia - 33 and Instructions of Bank of Russia - 125.

The list of the basic normative acts of Bank of Russia regulating realisation of control and supervising powers by it, is resulted in the bibliography applied on the present work. The most important certificates are specified in chapters 2 and 3 dissertations.

It is necessary to notice, that separate certificates of the State bank of the USSR in a part which are not contradicting the Russian legislation and normative acts of Bank of Russia now continue to operate. The Letter of the State Bank of the USSR, for example, concerns them from 24.05.91 №352 "Substantive provisions about currency management in territory of the USSR". [51 [52]

Decisions of the Constitutional Court of the Russian Federation (further - KS the Russian Federation) also are a source of regulation of bank activity. They are published in writing, have legislation effect, are calculated on numerous application. Decision KS the Russian Federation on concrete business extends not only on participants of the constitutional dispute in connection with whom it was accepted, but also on an unlimited circle of persons.

Among certificates KS the Russian Federation containing norms, regulating bank activity, as an example it is possible to result decision KS the Russian Federation from December, 23rd, 1997 «On business about check of constitutionality of point 2 of article 855 GK the Russian Federation and parts of 6 articles 15 of the Law of the Russian Federation« About bases of tax system in the Russian Federation »in connection with inquiry of Presidium of the Supreme Court of the Russian Federation; and also Definition KS the Russian Federation from December, 14th, 2000 on demand of the Supreme Court of the Russian Federation about check of constitutionality of a part of 3 articles 75 of the Law on Bank of Russia.

In summary it is necessary to notice, that among other sources regulating bank activity, it is necessary to name also legal customs (bank practice), law-making treaties (for example, interstate and interbank), and also the local certificates accepted by controls of the credit organisations concerning regulation of internal relations in banks, an order of the account, storage and use of values, registration of accounts, office-work realisation, etc.

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A source: Maksimov Michael Veniaminovich. FEATURES OF LEGAL REGULATION OF THE CONTROL AND SUPERVISION IN SPHERE OF BANK ACTIVITY IN THE RUSSIAN FEDERATION. THE DISSERTATION On competition of a scientific degree of the master of laws. Moscow - 2002. 2002

More on topic § 2. Complex character of legal regulation of bank activity:

  1. § 1. Concept and a role of bank supervision of a legal mechanism of state regulation of bank activity.
  2. § 1. Standard regulation in a legal mechanism of state regulation of bank activity.
  3. § 3. Features of a legal status of Bank of Russia as body of state regulation of bank activity.
  4. § 2. The organisation of clearing settlements in system of functions of the Central bank of the Russian Federation as body of state regulation of bank activity and its legal bases.
  5. § 2. Development of legal regulation of activity of the authorised banks of the Government of Moscow in the conditions of definition of a legal status of joint-stock company «the Moscow municipal bank - Bank of Moscow» (1995 - the end of 1999).
  6. § 2. Specificity of administrative system in state regulation of bank activity. Kinds of state regulation of bank activity.
  7. § 1 Concepts and the legal nature of state regulation of bank activity.
  8. § 1. Bank activity as object of legal regulation
  9. §3. Bases of legal regulation of bank activity in the Russian Federation
  10. § 2 Legal means individually-legalre_uli - rovanija in system of state regulation of bank activity.
  11. Chapter 2. Features of legal regulation of activity of Bank of Russia under the control over creation of the credit organisations and supervision of their activity
  12. §1. Powers of the Central bank of the Russian Federation on regulation of bank activity