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§ 2. Concept, a subject and principles of legal regulation of currency transactions of the Russian Federation

The analysis of concept, subject and principles of legal regulation of currency transactions in the Russian Federation is considered, the most expedient, to begin with short analysis of the various points of view on essence and maintenance of currency values and currency transactions, at the same time, basic attention research of the given categories us will be given in the following paragraph of the present chapter.

The period of the twentieth years of the XX-th century is known in history of Russia as time of New economic policy (NEPa) which was characterised by relative liberalisation of economic relations in comparison with military communism. Professor A.V.Venediktov in 1924 named this economic policy of the Soviet state state kapitaliz -

32

MOM.

In 1922 the Civil code of RSFSR which has formed a basis for economic development has been accepted. According to item 24 of the Civil code of RSFSR of 1922 objects of transactions only within special laws can be: a gold both silver coin, and a foreign currency.

Thus, currency values were the object of the civil rights limited in the civil circulation. The basic regulation of an order of fulfilment of transactions with currency values was carried out by decisions of the CEC and Sovnarkoma the USSR, and also instructions National komissa - riata the finance of the USSR. For working out of the given normative acts experts in private law were involved. The chief of Currency management [31 [32]

NKF the USSR was professor L.N.Jurovsky. At NKF the USSR have been created Institute of economic researches.

So, in 1924 kodifikatsionnoj the commission working from March till August at the Leningrad branch of Institute, under presidency of professor A.V.Venediktova and with the assistance of professors F.A.Walter, A.G.Gusakova, M.J.Pergamenta and E.A.Flejshits had been developed projects of the Credit charter of the USSR, the Monetary charter of the USSR and Position about currency transactions.

The Position project about currency transactions defined an order of fulfilment of operations with a foreign currency and the checks written out in a foreign currency and bills and did not include positions about other currency values (precious metals in products and ingots, etc.). The Position project contained 5 heads: General provisions (item 1-2); Purchase and sale of a foreign currency (item 3-9); foreign currency Storage (stst. 10-18); Import, export and a foreign currency translation abroad and from abroad (item 19-29); the Account of a foreign currency (item 30-34 [33]). The Federal act operating now "On currency regulation and currency kontro -

About C

le "from December, 10th, 2003 (with changes from June, 29th, 2004) consists of 28 articles.

E.N.Danilov in 1925 purchase and foreign currency sale has described an existing order of fulfilment of transactions with currency values as follows, «, and also the checks written out in it, nowadays it is authorised with observance of special rules as directly at a stock exchange (stock exchanges and share departments of commodity exchanges), and through credit institutions. Bills of exchange and the checks which have been written out in a foreign currency can be objects of operations on the stock exchange a foreign currency. Single visitors have the right of fulfilment of share operations on the stock exchange, but objazatel -

or

But via share brokers ».

According to item 2 of decree CHK RSFSR« the Special Currency Meeting gives out permissions to the introduction in members or regular customers of stock exchanges and share otde -

37

lov commodity exchanges ».

According to decree VTSIK and CHK RSFSR «1. Fulfilment of transactions on purchase and gold and silver sale in ingots, a foreign currency is supposed, and is equal checks and the bills which have been written out in a foreign currency. 2. To operation with a foreign currency, and it is equal checks and the bills which have been written out in a foreign currency, are resolved on following bases:) purchase and sale of a foreign currency and the checks written out in a foreign currency and bills are made or is direct at a stock exchange or through the credit institutions having the right to fulfilment currency opera -

- 38

tsii ».

In 1927 V.M.Gordon has described a turn of currency values in the USSR as follows, «the reference of a gold and silver coin and other currency values is subject to a number of special restrictions. Originally the monopoly of buying up of all these values belonged to the State bank. After, however, this restriction it has been cancelled, in the beginning only for a foreign currency and the checks written out in it. Transactions with a foreign currency have been resolved at stock exchanges and share departments to their members and visitors. Then fulfilment of transactions on a foreign currency through the credit institutions having the right to fulfilment of currency transactions was authorised also. Nowadays, it agree decisions of the CEC and Sovnarkoma the USSR from July, 17th, 1925 and its subsequent additions, about [34 [35] [36] [37] holding court of transactions with currency values has received even more ample opportunities.

The state and co-operative organisations which charters do not provide the right of manufacture of currency transactions should receive the special permission to fulfilment of similar transactions only. Permissions stand out in Special Currency Meeting at narkomfine the USSR; thus permissions stand out as the general - on fulfilment of some operations, and special - on separate operation. The foreign currency reference is not permitted also when this currency is accepted as payment under transactions, except cases when the same currency is object of transactions, and also those cases when calculations under transactions of foreign trade with the establishment which is abroad are made. In other cases fulfilment of transactions with currency values, that is gold and silver in ingots, a foreign currency and the checks written out in it, bills and other payment

39

Documents ».

According to item 2 of the instruction on decision application HAS penetrated and CHK RSFSR about currency transactions from May, 20th, 1923 «the right of purchase and sale of a foreign currency and the checks written out in a foreign currency and bills at a stock exchange members and regular customers of stock exchange or share departments of commodity exchanges, as those have: members or personally, or through admitted by exchange committee of stock exchanges or council of a share department of representatives or representatives, or through share brokers, and regular customers - through share brokers» [38 [39].

Proceeding from interpretation of normative acts of that time it is necessary to notice, that currency transactions were meant as transactions with currency values and any theories about special legal nature of currency transactions to build it was not necessary. The history of development of the currency legislation of Russia of the twentieth years is characterised by gradual liberalisation of an order of fulfilment of currency transactions in spite of the fact that currency values were the object limited in a turn under the Civil code of 1922. The policy of liberalisation has been aimed at economic development of the state. Any person could come on stock exchange and make any transaction with currency values through the share broker without reception of any permissions to currency transaction.

The history of development of the currency legislation of Russia of the ninetieth years of the XX-th century is characterised by the opposite tendency as there is a complication of an order of fulfilment of currency transactions, new usages of reception of licences for fulfilment of currency transactions and the conclusions about expediency on fulfilment of the given operations are invented. And, by the way, the trade turnover demands fulfilment of these transactions immediately. Than this policy of the state, and what purposes it is caused pursues, remains a riddle. Existing in the twentieth years during the period of "the state capitalism» with currency values it is possible to name an order of fulfilment of transactions more progressive and more liberal in comparison with existing now, that speaks high professionalism of those who developed it.

In conformity the Civil code of the Russian Federation of 1994 currency values also are object of the civil rights. Though in item 128 of the Civil code of the Russian Federation currency values are not listed among objects of the civil rights, they are those owing to item 141 of the Civil code of the Russian Federation «kinds of the property recognised as currency values, and an order of fulfilment of transactions with them are defined by the law on currency regulation and exchange control. The property right to currency values are protected by the Russian Federation in accordance with general practice».

According to item 2 of item 140 of the Civil code of the Russian Federation «cases, an order and conditions of use of a foreign currency in territory of the Russian Federation are defined by the law or in the order established by it». According to ch. 2 items 2 of item 129 of the Civil code of the Russian Federation «kinds of objects of the civil rights which can belong to only certain participants of a turn or which finding in a turn is supposed under the special permission (objects, ogranichenno oborotosposobnye), are defined in an order, statutory».

Currency values as object of the civil rights are not limited in a turn in an order, statutory as the objects, able to belong to only certain participants of a turn, or that their finding in a turn probably only under the special permission. Thus, currency values are not objects, ogranichenno oboroto - capable in sense of item 129 of the Civil code of the Russian Federation. Restriction of currency values as object of the civil rights consists that an order of fulfilment of transactions with them are defined by the special law on currency regulation. Now there are questions apropos oborotosposobnosti a foreign currency as object of the civil rights.

In the legal theory at the description of currency values as object of the civil rights various opinions concerning them oborotosposobnosti are expressed. So A.Z.Haratjan approves, that «the turn of all currency values in the Russian Federation is to some extent limited. By the way, existence in the legislation of Russia of exchange restrictions - one of the basic obstacles of the introduction of the Russian Federation in such international organisations, as IMF and the WTO. The given restrictions in one cases are directed on concrete kinds of civil-law relations (transactions), and in others they limit particularly circle of participants of a turn.

At the same time, in one case speech does not go about a full interdiction, findings of currency values in a turn, that is the last are not objects withdrawn of a turn. All transactions with currency values should be carried out through the authorised banks. Thus for fulfilment of one transactions it is enough to authorised bank to have the internal licence of Bank of Russia for fulfilment of operations in foreign currencies (for example, credit delivery in a foreign currency or foreign currency attraction in contributions (deposits), at fulfilment of other transactions already is required presence of the general licence of Bank of Russia (for example, issue and purchase and sale of securities with face value in a foreign currency), and fulfilment of transactions with jewels and precious metals needed reception of the special licence which stood out Bank of Russia in coordination with the Ministry of Finance of Russia. [40]

Russia is member state of IMF since June, 01st, 1992 [41] In - the second, currency values are not object not only, withdrawn of a turn, but also limited in a turn according to item 129 and item 141 of the Civil code of the Russian Federation. Thirdly, the current legislation supposes possibility zajupochenija transactions with currency values and without the authorised banks.

According to item 2 of item 807 of the Civil code of the Russian Federation the foreign currency and currency values can be a loan for consumption subject in territory of the Russian Federation with observance of rules of articles 140, 141 and 317 Civil codes of the Russian Federation. Sledo - vatelno, the resident can conclude the loan for consumption in a foreign currency for the term of no more than 180 days with execution in a foreign currency without the permission of the Central bank of the Russian Federation. According to item 815 of the Civil code of the Russian Federation «the borrower the bill» can be given out. Hence, residents can give out the bills nominated in a foreign currency, for the term of no more than 180 days without the permission of the Central bank of the Russian Federation as the given transaction under the current legislation falls under criteria of current currency transaction.

A.Z.Haratjan approves, that transactions with currency values without participation of the authorised banks are possible only in the cases provided by Substantive provisions about currency management [42]. Substantive provisions reproduce norms from the law of the USSR «On currency regulation», cancelled on November, 03rd, 1992 [43]. According to item 15 of these positions of the transaction with currency values between residents, and also residents and non-residents in territory of the USSR, passing the authorised banks, are forbidden, except for following cases: transfers to gift to the state, funds, the organisations on the public and charitable purposes; donations of currency values to the spouse and close relatives; wills of currency values or their reception under the right of succession; Acquisitions, sale and an exchange with a view of a collecting of individual foreign bank notes and coins, including from precious metals, in an order established by the legislation of Union CCP and union republics [44].

According to the civil legislation the law on currency regulation and exchange control is the special law in relation to the Civil code of the Russian Federation regarding definition of kinds of the property recognised as currency values, and definition of an order of fulfilment of transactions with currency values. All normative acts accepted by the Central bank of the Russian Federation, are the subordinate legislation and, hence, should correspond to these laws, and in a part, to it contradicting, should not be applied. The central bank of the Russian Federation should result the normative acts concerning currency regulation, in conformity with operating civil legislation.

So, Substantive provisions about currency management in territory of the USSR have been accepted to execute the law of the USSR «On currency regulation», and now contradict the Federal act "On currency regulation and exchange control" from December, 10th, 2003 № 173-FZ (with changes from June, 29th, 2004) [45], as variously the maintenance of concept of currency values, currency transactions, residents and non-residents. Besides, the Federal act "On currency regulation and exchange control" from December, 10th, 2003, corresponds to the Civil code of the Russian Federation, and defines an order of fulfilment of transactions with currency values (currency transactions) on the basis of item 141 of the Civil code of the Russian Federation and a condition of use of a foreign currency, and also payment documents in a foreign currency at realisation of calculations in territory of the Russian Federation according to item 317 of the Civil code of the Russian Federation. The law of the Russian Federation «On currency regulation and exchange control» from October, 09th, 1992 № 3615-1 [46] has been accepted before acceptance of the Civil code of the Russian Federation and the given questions did not regulate.

In the legal theory attempts to define legal nature of concept of currency transactions become. A.N.Kozyrin defines «currency transactions as settled by the national legislation or international agreements of the transaction or other actions which subject is the currency or currency values» [47].

N.V. Shoemakers defines «currency transactions in narrow sense as actions of residents and (or) the non-residents, directed on an establishment, change or the termination of their rights and duties concerning 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. Currency transaction in a broad sense is a set of legal and actual actions of participants of the currency relations regulated by private-legal and public norms and directed on occurrence, change and the termination of the rights and duties concerning currency values. Participants of currency relations are the parties transaction currency, bodies and agents of exchange control» [48].

E.F.Zhukov defines «currency relations as daily communications which private persons enter, firms, banks in the currency and monetary markets for the purpose of realisation of international payments, credit and currency transactions in Russia» [49]. Some authors make definition «of operation as the economic stream reflecting creation, exchange, transfer or liquidation of any economic cost that can assume transition of the property right to the goods and (or) financial actives, rendering, rendering of services or work and capital granting» [50].

The given concept, undoubtedly, has huge value for an economic science, but for the legal theory of currency transactions it is absolutely useless, as it is not obviously possible to define legal nature of the economic stream reflecting transformation of any economic cost, that only can assume transition of the property right to the goods and (or) financial actives, rendering of services or work and capital granting.

The legal nature of currency transactions since twentieth years of the XX-th century has not changed, and from the point of view of the legal nature currency transactions remain transactions with currency values, than they and were in the twentieth years of the XX-th century when this concept has been entered along with concept of operations on the stock exchange (the transactions made at a stock exchange), etc.

Criterion for allocation of currency transactions as special kind of transactions is special obekt. - currency values. In the law of the USSR «On currency regulation» following definition contained: «Currency transactions - the operations connected with:) transition of the property right to currency values; use as a foreign currency instrument of payment, and also currency of the USSR at foreign trade activities realisation; import and transfer to the USSR from abroad both export and transfer from the USSR abroad currency values, and also realisation of the international remittances» [51].

Legal criterion for allocation of currency transactions is their object - currency values. For the control over foreign trade activities it is necessary to use other mechanisms as regulation of foreign trade activities and currency regulation is different areas of regulation of the civil circulation.

Till now in jurisprudence it is not given due attention of the theory of the currency right in Russia. Actually the first work containing detailed questions of the theory of the currency right, has appeared in 2000, prepared by three authors B.JU Dorofeyev, N.N.Zemtsov and V.A.Putinym. They consider, that the legal base of the currency right are civil both humanitarian ideas and principles about property transactions and obligations, contract freedom, observance and realisation of the rights and freedom of the person, property rights of the managing subject, responsibility for offences, and also public ideas about an imperative method of regulation, an establishment of duties and measures of responsibility [52 [53].

From the above-stated the conclusion that currency regulation is an independent area of regulation of the civil circulation arises; currency regulation does not concern to budgetary and a tax policy as is sphere of public relations.

But, nevertheless, the given conclusion is erroneous. It is necessary to notice, that owing to item 1 of item 2 of the Civil code of the Russian Federation defines the bases of occurrence and a procedure of the property right and other real rights, regulates the contractual and other obligations connected, first of all, with transition of the property right to objects of the civil rights.

In turn, owing to item 128 of the Civil code of the Russian Federation to objects of the civil rights things, including money and securities concern. Item 140 of the Civil code of the Russian Federation «Money (currency)» defines, that cases, an order and conditions of use of a foreign currency in territory of the Russian Federation, and also currency values according to item 141 of the Civil code of the Russian Federation, are defined by the law or in the order established by it.

Actually civil legislation does not define currency values, an order and conditions of their use, and is directed on regulation of property relations, i.e. occurrence and realisation of the property right and other real rights on currency values, possession, using and the order by them, as well as other things which are objects of civil law. Currency relations are not included into a civil law subject.

It is impossible to deny that fact, currency relations are connected in certain degree with property relations regarding fulfilment of currency transactions understood as the transactions directed on transition of the property right to currency values. But the concrete maintenance of currency relations is, first of all, the reference of a foreign currency and external securities in territory of the Russian Federation that represents a subject of currency-legal (financially-legal) regulation. [54]

According to Federal act item 1 «On currency regulation and exchange control» that on December, 10th, 2003 № 173-FZ the foreign currency is understood as bank notes in the form of banknotes, treasury notes, the coins which are in circulation and being lawful means of cash payment in territory of the corresponding state (group of the foreign states), and also withdrawn or withdrawn from circulation, but the specified bank notes coming under to an exchange.

Monetary circulation — movement of money in the cash and non-cash forms, serving krugooborot the goods, and also non-commodity payments and calculations. [55] in turn, monetary circulation is a component of the monetary system understood as the form of the organisation of monetary circulation in the state. In this case, proceeding from the analysis finansovopravovyh certificates, pertinently to approve, that monetary circulation in the Russian Federation includes also the foreign currency reference in cash and non-cash forms.

In jurisprudence nobody put and does not call into question that fact, that the monetary system and monetary circulation are a subject of financially-legal regulation. The reference of a foreign currency and external securities owing to the specificity are a subject of independent institute of the financial right — the currency right.

The purpose of currency regulation, as well as credit-and-monetary regulation is, first of all, maintenance of stability of currency of the Russian Federation.

Legal regulation of currency relations, proceeding from general provisions of theory of law, is directed on regulation of the public relations arising in the course of the reference of a foreign currency and external securities. Legal regulation of currency relations represents carried out by means of system of legal means productive, is standard-organizational influence on the public relations developing in the course of the reference of currency values, for the purpose of their streamlining, protection, development according to public requirements. [56 [57]

However, the made definition of legal regulation of currency relations at first sight, is correct, proceeding from positions of the general theory of law that a legal regulation subject are public relations, but not the unique point of view.

In this connection, it is necessary to address to concepts "relation" and "the public relation". The relation is one of the cores logikofilosofskih the categories, reflecting a way, a life and knowledge sort. The given philosophical category has been entered into philosophy by Aristotle. The concept about the relation arises as result of comparison of any two subjects on chosen (or set) to the comparison basis (comparison on size,

With

On time, on participation etc.). The relation - the geometrical relation of two sizes is called private, received from division of one size into another, the arithmetic relation - a difference. [58]

Public relations - the diverse communications developing between people in the course of their activity in various spheres of a public life and defined in the way of manufacture of their material life, arise with the advent of a social production. [59]

Apparently from definitions, the relation is a result of comparison, public relations — diverse communications. The question consists in, whether that probably legal influence on result of comparison or on diverse communications; about what result of comparison in tax relations there is a speech, what diverse communications are shown in tax relations.

The given sight about legal regulation of currency transactions of banks and legal relation as a whole is an object of research and in the field of the theory права.60 [60 [61]

O.S.Ioffe in the work «on the Soviet civil law» concerning tax relations noticed Legal relations, that tax relations can exist only as relations legal, they cease the existence together and simultaneously how lose

- 62 juridicheskii character.

Certain communication falls under legal regulation between persons, at presence currency-rule of law it becomes legal and such communication exists as legal relation.

C the purpose of definition of a subject of currency-legal regulation it is necessary to address, first of all, to structure and maintenance consideration currency-rule of law.

The legal (legal) norm is a general rule of behaviour. The word "norm" means “the general rule to which should follow in all similar cases: the sample or an example” [62]. In a society simultaneously operate a different sort of norm are there can be norms of morals, customs and, at last, rules of law. Difference of rules of law from other social norms consists that the rule of law, first, is established by the state in the name of the authorised bodies, secondly, is formulated and fixed in special normative acts, thirdly, execution of rules of law is provided and supported by measures of the state compulsion.

Currency-rule of law is approved, authorised, established by the state and supported by measures of the state compulsion a rule of behaviour of participants of process at fulfilment of currency transactions and exchange control carrying out.

In turn, the behaviour rule represents set of the actions defined in the structure currency-rule of law and constituting its maintenance.

If we address to a disposition currency-rule of law we will see, that a rule of behaviour of participants of currency legal relations in the course of realisation of currency transactions and exchange control carrying out, there is not that other, as actions of the given participants fixed in a disposition currency-rule of law in the form of the rights and duties.

In this connection, currency-rule of law, containing in the currency legislation, order to participants of currency legal relations fulfilment of certain actions (or abstention from actions), fixed in a disposition currency-rule of law in the form of the rights and duties, i.e. influence behaviour of participants which set of actions is. From here, legal regulation of currency relations is directed on behaviour (actions) of participants of currency legal relations which are a legal regulation subject, by a subject of the currency right.

Proceeding from that substantiation, that a subject of the currency right are actions of participants of currency relations in the course of realisation of currency transactions and exchange control carrying out, consider necessary, to address to definitions of legal regulation of currency relations 63 and the currency right as the complex institute entering into system of the financial right.

In our opinion, it is necessary to understand an establishment and realisation of a certain order as legal regulation of currency relations as result of is standard-organizational influence on participants of process at realisation of currency transactions and exchange control carrying out by means of which the behaviour of the authorised state bodies, banks, legal and physical persons is brought into accord with requirements and the permissions containing in norms of the currency right.

The currency right, in our opinion, is the certain order developing in the course of realisation of currency transactions and carrying out of exchange control, fixed in currency-rules of law.

As directly subject of the currency right act: currency transactions; legal acts (certificates and acts), following from possession, using and the order currency values (for example, norms about an order of registration and the account of currency-exchange operations); remedial relations on application of rules of law (licensing of currency transactions, an order of application of responsibility for currency offences).

In connection with absence of wide recognition of the given position about a subject of civil-law regulation as behaviour of subjects of law and use in the legal literature of position on a legal regulation subject as public relations, the further consideration of questions of dissertational research will be spent from positions of application of concepts of "relation" and "public relations".

Subjects of the currency right: physical persons, legal bodies; residents, non-residents; bodies of currency regulation, exchange control bodies, agents of exchange control; the authorised banks, clients

The authorised banks. A regulation method - basically imperative (imperiously-centralised, not supposing deviations and the discretion of subjects), that allows to carry the currency legislation to publichnopravovoj to sphere [63].

In our opinion, it is necessary to divide the legislation on foreign trade activities and the currency legislation, and, accordingly, not to identify the state control over foreign trade activities and the control over the currency transactions which are carried out in territory of the Russian Federation (exchange control). These two kinds of the state control urged to solve different problems.

It is necessary to agree with the point of view, that «articles 140-141 of the Civil code of the Russian Federation translate regulation of all transactions with a foreign currency in sphere of the currency legislation in this connection, application of the civil legislation in considered sphere - in those cases which are not settled by the currency legislation differently (according to item 3 of item 2 of the Civil code of the Russian Federation the civil legislation to similar relations is not applied if other is not provided by the Russian legislation)» [64].

The purpose of legal regulation of currency transactions is creation of the effective mechanism of influence on participants of currency transactions by definition of principles of realisation of currency transactions in the Russian Federation, powers and functions of bodies and agents of exchange control, the rights and duties legal and physical persons concerning possession, using and the order currency values, a liability of infringement of the currency legislation.

Creation of a legal mechanism of currency regulation assumes legislative definition of principles of such regulation, a legal regime of currency values, a legal status of participants of currency relations, including accurate frameworks of the competence of bodies and agents of exchange control, an establishment of responsibility of participants of currency relations for infringement of the currency legislation.

Legal regulation of currency transactions means definition by the state, proceeding from interests of a society, limits and an order of activity of participants of currency relations. It is possible to allocate the following the general principles which have developed to the present time of legal regulation of currency transactions:

- Possibility participants of currency relations to make without the special permission (licence) of the representative to that of the state body only those currency transactions which directly and are more exhaustively listed in the legislation, i.e. the principle «is prepotent everything is forbidden, except permitted»;

- Possibility of realisation of currency transactions only through the authorised banks or at their direct participation;

- Rigid exchange control from bodies and agents of exchange control behind legislation observance at realisation of currency transactions.

The first principle specifies in a basic rule of realisation of the currency transactions, expressing the most essential feature of currency regulation. To it there corresponds a certain method of legal regulation of currency relations - imperative.

The second principle is caused by an economic role of the authorised bank in the currency market and putting on on it the law of functions of the agent of exchange control. With reference to the most authorised bank the given principle has specific refraction. As the authorised bank is the authorised subject in sphere of the reference of the currency values, mediating the currency market for other participants of currency transactions, it does not have necessity to carry out currency transactions through other authorised bank.

The third principle is predetermined by requirement of strict observance of an interdiction for fulfilment of currency transactions for infringement of the order established by the current legislation, necessity of revealing of infringers of the currency legislation and their attraction to responsibility.

The principles of legal regulation of currency transactions formulated above are characteristic for all file of the domestic currency legislation and are directed on realisation of its purpose, show the basic directions of standard regulation of activity of participants of currency relations.

The point of view expresses, that feature of the currency legislation is the statement of a great bulk of norms in the subordinate legislation that causes inconstancy and unsystematic character of a legal basis of the external economic and currency activity. Essential data are scattered on tens and hundreds constantly changeable documents, to be guided in which difficultly even to experts [65]. We believe, that the statement of a great bulk of norms in the subordinate legislation is not feature, and a lack of the operating currency and external economic legislation.

To understand the given system of normative acts concerning the currency regulation, proceeding from the Central Bank of the Russian Federation which it published in the form of reports of information of generalisation of practice of their application. In these generalisations of practice of application of the normative acts the Central Bank of the Russian Federation in the form of answers to concrete questions explained how it is necessary to apply its normative acts.

Has practical value classification of the currency transactions offered by N.V.Sapozhnikovym: spent in territory Russian

Federations; spent outside of the Russian Federation; connected with moving of currency values through border of the Russian Federation [66].

The law of the USSR «On currency regulation» on March, 01st 1991 № 1982-1 divided all currency transactions on flowing and capital and defined current currency transactions as follows: the operations connected with purchase and sale of currency values, the goods and services, realisation of the rights to intellectual property, calculations on which are carried out on conditions without a payment delay, and not assuming grantings or attraction of extra means; transfers of means abroad and from abroad, percent, dividends and other incomes of bank contributions, credits, investments and other financial operations; transfers of means of uncommercial character, including transfers of a patch, pensions, the alimony, inheritances, and other similar operations [67].

Division of currency transactions into the flowing and capital is based according to the Contract on IMF. The Russian Federation as member state of IMF has taken up obligations of member state [68].

The explanation of the terms used in the contract, contains in article of XXX contract about IMF. According to point «with і» item of XXX contract: «payments on current operations are understood as payments which are made with a view of, distinct from transfer of the capital, and include, without restrictions: 1) all payments, repayable in connection with conducting foreign trade, other current activity, including services, and also in connection with work of usual short-term bank and credit mechanisms; 2) payments, repayable in the form of percent on loans and in the form of the net profit from other investments; 3) payments of the moderate sums on account of repayment of loans or on account of amortisation of direct investments; 4) the moderate sums of private transfers into the operational expenditure of families from abroad. After carrying out of consultations of interested member states the Fund can establish, whether certain operations to flowing should to concern ope -

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To portable radio sets or to operations with the capital ».

According to the item "and" section 2 of item VHI of the same contract among community debts of member states the duty is established, that any of member states cannot enter without Fund approval restriction on payments and transfers under current international transactions. World practice admits, that «the Bretton-Vudsky agreement (the Contract on IMF) has begun modern international payments, the international capital account and the international legal cooperation in va - ljutnoj to sphere».

By present time there was a certain practice of application of norms of this contract; so, article VIII, section 2 () Contracts on IMF forbids to enter exchange restrictions publicly - and private-legal character. Trading restrictions do not come within the purview of this norm. Not always easier to find out distinction between legal restrictions in currency sphere and trade. According to one of decisions of Executive management of Fund, «to define, whether serves accepted, a measure for restriction of payments and transfers under current transactions it agree items VIII, section 2... It is necessary to find out, whether there is a speech about direct state restrictions concerning possession currency or its uses». According to re - [69 [70] sheniju Executive management, has no value, the given measure for the purpose of protection of the balance of payments is accepted or not.

The fact of influence on the order right as a whole and, accordingly, on concrete use of payment means is solving. From here follows, that import restrictions (including and quantitative) are not those in sense of items VIII, section 2 () Contracts on IMF if they establish the top border of payment to the foreign counterpart. Are not restrictions in sense of item of VIII section 2 () and the decisions of member states obliging local exporters and importers to insure the goods in national insurance companies.

Trading restrictions do not come within the purview of items VIII, section 2 () the Contract on IMF and those cases when they are directed first of all on maintenance of currency stability of the country. Do not come within the purview of item of VIII section 2 () and the measures obliging the foreign companies reinvestirovat in the country a part of received profit. However items of VIII section 2 () contradict the measures accepted by any member state of IMF for the purpose of an interdiction to the local companies to pay dividends to foreign shareholders which participate in these companies according to the legislation of this state.

Restrictions in sense of item of VIII section 2 () Contracts on IMF are only such measures, «which limit payments and transfers under current international transactions». Measures of the passive control, such as a duty to give to the authorities statistical data, do not fall under concept of restrictions if do not do impossible current payments and transfers, do not complicate them excessively and do not lead to unjustified delays in their realisation. Verner F.Ebke suggests to recognise as flowing short-term bank and credit operations for the term up to 12 months [71].

The standard world practice divides trading restrictions of foreign trade activities and restriction on current and capital currency transactions. In the Russian Federation such differentiation is not spent. So, according to the review of arbitration practice of the Russian Federation the duty on sale of a part of the currency gain, established by the Decree of the President of the Russian Federation from June, 14th 1992 [72] concerns the currency legislation [73]. Though it is obvious, that legal nature of restrictions at realisation of currency transactions and the restrictions connected with foreign trade activities, is various in spite of the fact that in both cases disablements on currency values take place.

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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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