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§ 3. Concept and a subject of currency transactions of banks of the Russian Federation

It is known, that normal functioning of the international commodity-money relations probably only under condition of a free exchange of national currency for currency of other countries. Internationalisation of economic communications creates favorable conditions for the international reference of the national currencies possessing the greatest purchasing capacity, stability, and, hence, and high degree of convertibility outside of «the states of emitters».

In this connection, in the theory of the financial right the concept of a currency mode as the system established by the state taken as a principle of a general direction of state regulation of an order of external and internal calculations, operations with a foreign currency is allocated. There are three types of a currency mode: currency monopoly of the state without converting of national monetary unit; a mode of exchange restrictions in conditions ogranichenno convertible national monetary unit; absence of exchange restrictions and free convertibility of national monetary unit. In the Russian Federation the second type of a currency mode is objectively inherent. [74]

The given situation causes interest of "the states of emitters» in strengthening of the national currencies. In this connection the role of the national legislation increases in definition of the status of a foreign currency, an order of its reference, maintenance of a priority of national currency and protection of its purchasing capacity, settlement of other factors influencing convertibility of national currency. Maintenance of convertibility of national currency is the major condition of successful occurrence of the country in system of the international division of labour and international trade, maintenance of protection of economic interests of the state in system of the economic communications which value is difficult for overestimating.

The maintenance of currency relations, in difference from legal relations, the system of elements constituting them is: currency as object of currency transactions; other currency values, in cases provided by the currency legislation; participants of the currency relations having the right to fulfilment of currency transactions; currency transactions as activity on fulfilment of transactions with currency values; exchange control; responsibility for fulfilment of currency offences. [75]

The term "currency" (valuta in a translation from Italian, it it is literally - cost) means monetary unit of any state (natsio - nalnaja, currency) or foreign the states (foreign currency).

The closed currencies which can be unconvertible or with the limited conversion are allocated, and is hard currencies (completely reversible). If exchange restrictions extend on all kinds of currency transactions, the currency is unconvertible. If exchange restrictions exist for separate kinds of currency transactions, such currency is considered currency with the limited conversion. It is hard currencies address without any essential restrictions. In the international payment turn currencies of all kinds, but mainly completely the reversible are used. The currency of the Russian Federation at the present stage on the legal regime is closest to the currencies possessing internal convertibility, i.e. to the currencies which purchase and sale can freely be carried out in the internal currency market through authorised on conducting such operations subjects (in the Russian Federation - through the authorised banks).

According to the Law of the Russian Federation operating earlier «On currency regulation and exchange control» from October, 9th, 1992 № 3615-176 [76] [77] (in red. Federal acts from 29.12.1998 № 192-FZ, from 05.0.7.1999 № 128-FZ, from 31.05.2001 № 72-FZ, from 08.08.2001 № 130-FZ, from

30.12.2002 № 196-FZ, from 31.12.2002 № 187-FZ, from 31.12.2002 № 192-FZ, from

27.02.2003 № 28-FZ, from 07.07. 2003 № 116-FZ, with the amendments brought by Definition of the Constitutional Court of the Russian Federation from 04.03.1999 № 50-0) to currency values concerned:

Foreign currency;

The securities nominated on century to a foreign currency, - payment documents (checks, bills and other payment documents), issue securities (including actions, bonds), the securities derivative of issue securities (including depozitarnye receipts), the options granting the right to acquisition of securities, and the promissory notes expressed in a foreign currency; (subitem in red. The Federal act from 31.05.2001 № 72-FZ)

Precious metals - gold, silver, platinum and metals of platinum group (a palladium, iridium, rhodium, ruthenium and osmium) in any kind and a condition, except for jeweller and other household products, and also a breakage of such products;

Natural jewels - diamonds, rubies, emeralds, sapphires and alexandrite in the crude and processed kind, and also pearls, except for jeweller and other household products from these stones and a breakage of such products.

Order and conditions of reference of products from precious metals and natural jewels to jeweller both other household products and a breakage of such products are established by the Government of the Russian Federation.

According to Federal act item 1 "On currency regulation and exchange control" from December, 10th, 2003 № 173-FZ (with changes from June, 29th, 2004) [78] to currency values concern: a foreign currency and external securities.

Thus, the novel does not carry precious metals and natural jewels to currency values.

All participants of currency transactions from the point of view of the Russian legislation (the Law of the Russian Federation «On currency regulation and exchange control») are subdivided into "residents" of the Russian Federation and "non-residents" of the Russian Federation. Residents concern

The physical persons who are citizens of the Russian Federation, except for the citizens of the Russian Federation recognised constantly living in foreign state according to the legislation of this state;

Constantly living in the Russian Federation on the basis of the residence permit provided by the legislation of the Russian Federation, foreign subjects and stateless persons;

The legal bodies created according to the legislation of the Russian Federation;

Being outside of territory of the Russian Federation branches, representations and other divisions of the residents specified in the subparagraph "in" the present point;

Diplomatic representatives, consular establishments of the Russian Federation and other official representations of the Russian Federation which are outside of territory of the Russian Federation, and also permanent missions of the Russian Federation at the interstate or intergovernmental organisations;

The Russian Federation, subjects of the Russian Federation, municipal unions which act in the relations regulated by the present Federal act and other federal acts accepted according to it and other standard legal acts;

As non-residents are understood:

The physical persons who are not residents according to subparagraphs "and" and of point 6 of the present part;

The legal bodies created according to the legislation of the foreign states and having a site outside of territory of the Russian Federation;

The organisations which are not legal bodies, created according to the legislation of the foreign states and having a site outside of territory of the Russian Federation;

The diplomatic representatives accredited in the Russian Federation, consular establishments of the foreign states and permanent missions of the specified states at the interstate or intergovernmental organisations;

The interstate and intergovernmental organisations, their branches and permanent missions in the Russian Federation;

Being in territory of the Russian Federation branches, permanent missions and other, isolated or independent structural divisions of the non-residents specified in subparagraphs and "in" the present point;

Other persons who have been not specified in point 6 of the present part;

Besides, participants of currency transactions depending on, whether possess they the individual permission of competent state body to fulfilment of currency transactions or can make only those currency transactions for which performance it is not required the corresponding individual permission, can be divided into the "authorised" and "unauthorized" participants of currency transactions. And such division can be considered correct only in the event that it is a question of the currency transactions which fulfilment is carried out in the licensing.

As already it was specified above, the operating currency legislation of the Russian Federation does not contain legal definition of concept of currency transactions. The legislator only allocates those or other kinds of operations which it carries to the currency.

The currency legislation does not carry currency of the Russian Federation to currency values. In this connection it is represented logical, that calculations between residents and non-residents in the Russian currency were not considered earlier by the legislation as currency transactions. However item 20 of the Federal act from December, 29th, 1998 «About prime measures in the field of budgetary and a tax policy» [79] has added item 2 of item 7 of the Law of the Russian Federation operating on that moment «On currency regulation and exchange control» the item "g": import on the customs territory of the Russian Federation and export from the customs territory of the Russian Federation of currency values, currencies of the Russian Federation and internal securities.

According to item 9 item 1 "Currency transactions" «the Basic concepts used in the present Federal act» Federal act «On currency regulation and exchange control» from December, 10th, 2003 № 173-FZ to currency transactions concern:

Acquisition by the resident at the resident and alienation by the resident in favour of the resident of currency values on lawful basises, and also use of currency values as an instrument of payment;

Acquisition by the resident at the non-resident or the non-resident at the resident and alienation by the resident in favour of the non-resident or the non-resident in favour of the resident of currency values, currency of the Russian Federation and internal securities on lawful basises, and also use of currency values, currencies of the Russian Federation and internal securities as an instrument of payment;

Acquisition by the non-resident at the non-resident and alienation by the non-resident in favour of the non-resident of currency values, currencies of the Russian Federation and internal securities on lawful basises, and also use of currency values, currencies of the Russian Federation and internal securities as an instrument of payment;

Import on the customs territory of the Russian Federation and export from the customs territory of the Russian Federation of currency values, currencies of the Russian Federation and internal securities;

Foreign currency translation, currencies of the Russian Federation, internal and external securities from the account opened outside of territory of the Russian Federation, into the account of the same person opened in territory of the Russian Federation, and from the account opened in territory of the Russian Federation, into the account of the same person opened outside of territory of the Russian Federation;

Transfer by the non-resident of currency of the Russian Federation, internal and external securities from the account (from account section), opened in territory of the Russian Federation, into the account (account section) the same person, opened territories of the Russian Federation;

In the law operating earlier addition of the list of currency transactions with calculations between residents and non-residents in currency of the Russian Federation, in our opinion, was faster tactical, than the conceptual decision caused by crisis of the currency market, burst after August, 17th, 1998 [80] There are no doubts, that operations of non-residents with currency of the Russian Federation should be covered by currency regulation as granting non-residents of the right to carry out operations with national currency assumes granting of possibility by it to get a foreign currency for the Russian roubles.

Thus, presence in the subject structure of the given operations «foreign element» creates requirement for their special regulation with a view of maintenance of stability of national currency. However it does not give the bases to carry operation of non-residents with currency of the Russian Federation to currency transactions. It is represented to more correct to speak about currency transactions only when operations with currency values are made. At such position in a subject of currency regulation will join as operation with currency values (actually currency transactions), and operations of non-residents in territory of Russia with currency of the Russian Federation and securities in currency of the Russian Federation (operation with «a foreign element»).

Legislative definition of the list of currency transactions in the Federal act «On currency regulation and exchange control» from December, 10th, 2003 № 173-FZ also is represented disputable enough and not reflecting essence of currency transactions as does not contain instructions on their general signs and specificity in relation to the activity which has been not connected with currency values. It more reminds one of classifications of currency transactions. Proceeding from the resulted list, currency transactions in «narrow sense» can be considered as action of residents and-or the non-residents, directed on an establishment, change or the termination of their rights and duties concerning currency values.

The made definition is close to definition of the civil-law transaction, differing from it only presence of object with a special legal regime which currency values are. Therefore it can be considered as definition of the currency transaction more likely, allowing to note the general signs of currency transactions and civil-law transactions, but not giving to possibility to allocate specific features of activity C currency values.

Specific line of currency transactions is legislatively fixed strict exchange control behind them, accompanied nearby both legal, and actual actions of agents and-or exchange control bodies. Thus, "in a broad sense" currency transactions represent set of legal and actual actions, both the parties of the currency transaction, and bodies and-or agents of exchange control (participants of currency relations). From this it is possible to draw a conclusion, that currency transaction includes difficult structure of legal actions and assumes, that their participants enter both in private-law, and public relations.

Hence, currency transaction represents set of legal and actual actions of participants of the currency relations regulated private-law and publicly by rules of law and directed on occurrence, change or the termination of the rights and duties concerning currency values.

Currency transaction definition in «wide sense» allows to reveal its specificity by instructions that it is accompanied by exchange control and actions of bodies and agents of exchange control are its integral element. The specified specificity is predetermined by high degree of requirement for a combination private and public interests at an establishment, a procedure of currency transactions.

Passing to consideration of a role of currency transactions of banks (as authorised subjects of currency relations) among other currency transactions, it is necessary to stop, first of all, on the economic nature of bank. To bank two obshcheekonomicheskie are inherent in function: regulating and intermediary. Monetary circulation regulation is carried out by accumulation (attraction of money resources), crediting (placing of money resources), the organisation of calculations and cash operations.

As the intermediary in payments, bank is the centre in which monetary streams are crossed, means concentrate and redistributed, provided change and diversifikatsija directions, the size and terms of investments of means, wider contacts of subjects of reproduction are carried out and the risks existing at calculations nalich are reduced

nymi money resources.

Proceeding from the economic nature of bank, it is possible to draw a conclusion on a specific role of the currency transactions spent by authorised banks, among a lump of currency transactions as these operations are potentially capable to have regulating influence on currency transactions of other participants of currency relations, on the foreign currency reference. The special place of bank currency transactions is caused by a natural role of bank as intermediary in the financial market, and, hence, between a supply and demand on a foreign currency and other currency values addressing in the specified markets [81 [82] [83].

Specificity of bank activity demands the special legal approach to regulation of operations carried out by bank. In this connection consideration of a legal mechanism of regulation of bank currency transactions, in our opinion, represents the big interest.

The banks having the bank currency licence (the authorised banks), are the basic participants of the internal currency market of the Russian Federation, i.e. the basic participants of the operations connected with currency values, carried out on territory of Russia. The priority of the authorised banks in the internal currency market of the Russian Federation has found legal fastening, in particular in item 11 item 1 «Internal currency market of the Russian Federation» of the Federal act «On currency regulation and exchange control» from December, 10th, 2003 № 173-FZ, providing possibility of purchase and foreign currency sale in the Russian Federation is exclusive through the authorised banks. Transactions of purchase and sale of a foreign currency, prisoners, passing the authorised banks, are void.

At definition of a role of bank currency transactions it is necessary to consider that credit and financial relations in the conditions of market economy completely penetrate it. Development of enterprise activity, including external economic, directly depends on ability of bank system to finance this activity. Realisation of export-import transactions frequently is impossible without reception of the credit from the authorised bank for financing of expenses in a foreign currency on such operations. Attraction of credit resources of the authorised banks by the Russian exporters and importers is dictated also by requirements of the expanded reproduction, aspiration to increase of profitableness from foreign trade activities.

Besides, by delivery of the goods (works, services) for export or for realisation of import of the goods (works, services) the businessman requires bank service of the currency transactions as the subject of enterprise activity, carrying out export-import transactions, makes corresponding calculations through the authorised bank serving it. Physical and legal bodies can address to services of the authorised banks for the purpose of fulfilment of any currency transactions for increase of profitableness of investments of means available for them in national or a foreign currency, for example, foreign currency placing in contributions (deposits), acquisition or realisation of securities with the face value expressed in a foreign currency, etc.

Thus, fastening in the current legislation of special position of bank in the financial market with reference to currency transactions is quite proved by its economic role in the given market. Experience of the countries with the developed market economy shows, that the internal currency market develops most quickly at active participation of bank system, and the authorised banks are its largest participants.

Classification of bank currency transactions can be spent on the various bases depending on differentiation or integration of their essential characteristics. The economic being of bank operation, a kind of currency value, subject structure of currency transaction, territory of its carrying out can be such characteristics, for example.

1) On economic essence currency transactions of banks can be divided into following kinds:

Passive - on attraction of means in a foreign currency;

Active - on placing of means in a foreign currency;

Operations on service of calculations in a foreign currency.

The given classification reflects an economic role of bank. Making active operation, for example, giving out the credit, the bank aspires to place means available for it for a certain payment, at passive operation, for example, reception of contributions, bank aspires to involve means for a certain payment. Alternating passive operations with active, the bank carries out accumulation and redistribution of money resources. The third kind of bank operations is not neither active, nor passive bank operation. The specified kind of bank operations is directed on service of calculations and reflects essence of bank as the intermediary in payments.

2) In a subject of currency transactions they can be subdivided into operations:

- With a foreign currency;

- With securities in a foreign currency;

Features of a legal regime of various kinds of currency values are put in a basis of the given classification. As the listed objects of bank transactions have different economic appointment and accordingly the different legal regime caused by their specific form of existence in the objective world, the given classification allows to track most accurately differences of legal regulation of bank operations with various kinds of currency values.

3) On a circle of persons currency transactions can be divided into operations with residents of the Russian Federation and with non-residents of the Russian Federation. The different legal status of residents and non-residents of the Russian Federation assumes also the discrimination of the legislator to definition of an order of fulfilment of currency transactions by the specified subjects. The analysis of legal regulation of currency transactions on the basis of this classification allows to estimate most visually degree of an orientation of the national legislation on protection of national currency.

4) To a territorial sign the currency transactions spent by authorised banks, are subdivided into the operations which are carried out in territory of the Russian Federation, made outside of Russia and connected with moving of currency values through border of Russia. Currency transaction legal regulation should be carried out taking into account value of a turn of currency values for a national economy, consequences of their moving through border, necessity to differentiate an order of fulfilment of such operations in territory of the Russian Federation and behind its limits. Classification by a territorial sign allows to reveal discriminating features of legal regulation of operations with currency values depending on a place of their fulfilment.

Classification of operations of banks with currency values has essentially great value as helps to define the general approaches to their legal regulation, and also a place of bank currency transactions among currency transactions of other participants of the currency market. Legal regulation of bank currency transactions is carried out substantially through an establishment of rules of their fulfilment - sequences of the certain actions directed on occurrence, changes and the termination of the rights and duties of participants of currency transactions concerning currency values. The requirement for a rigid legal regulation of bank currency transactions consists in that mediating role which they play the currency market for its participants.

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A source: SHESTAKOVA ELENA VLADIMIROVNA. LEGAL REGULATION of CURRENCY TRANSACTIONS of BANKS In the RUSSIAN FEDERATION. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2005. 2005

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  3. SHESTAKOV ELENA VLADIMIROVNA. LEGAL REGULATION of CURRENCY TRANSACTIONS of BANKS In the RUSSIAN FEDERATION. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2005, 2005
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