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§ 5. Contractual certificates The central bank of the Russian Federation

The contract represents one of ways of legal regulation of public relations. The specified legal category has received the wide

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Distribution to civil law theories. According to item 420 GK the Russian Federation the contract admits the agreement of two or several persons on an establishment, change or the termination of the civil rights and duties.

In the general theory of law there are not enough researches on the given theme. And as has truly noted V.V. Ivanov, «in one of training courses on theory of law the unified definitions of concept of signs of the contract are not formulated -"sample"definitions of the private-law contract at the best are resulted. Practically the comparative analysis of various types of contracts is not given and in compliance with it accurate distinctions between them are not spent. Standard and individual dogovory are considered separately: the first (it is compressed and obzorno) at the characteristic of the sources of law, the second - at an estimation of juridical facts, legal relations and forms of legal relations. Dogovory are not mentioned, and if are mentioned, properly do not understand at the description of such key legal phenomena and processes, as legal regulation, the rule of law, law-making, pravoprimenenie etc. »[575 [576].

Recently the approach to the contract as to an establishment universal remedy on certain conditions of the legal bond between counterparts, as to a way of regulation of various public relations, and not just civil-law was outlined. In the literature it is truly noticed, that «the contract, to the dress in with other legal acts (legislative, administrative, judicial) is a universal remedy of legal regulation [577]. It can and should be applied in all branches of the Russian right, including the public. Dogovory possess some general lines following from the general principles of contractual regulation, and the features caused by branch specificity. Has ripened necessity of working out of the separate complex legal institution, namely« the contract -

nogo the rights ». Contract definition is the fullest is formulated by V.V. Ivanov who considers the contract,« the contractual certificate in the widest sense as the joint legal act representing issued expression of isolated adjusted independent wills of two or several formally equal subjects of law, laying down the conditions, which execution it is supposed obligatory »'.

From stated becomes clear, that the contract which is widely used in private-law relations, finds application and as a way of regulation of relations between subjects of the public law where it has the specific features [578 [579] [580]. Now public establishments go including on creation of legal mechanisms for the decision of the administrative problems realised by application of contractual tools at level of the state administration [581]. Thus, the public law which concerns financial and bank, uses the contractual beginning as a special way of legal regulation [582]. Distribution of contractual forms and methods on government area in theory of law is not challenged. On the contrary, many authors recognise, that the management organisation on a contract basis is not something essentially impossible.

The problem of the contractual form of the government was developed in the theory of administrative law and in a certain measure - the financial right.

In 1980 the All-Union scientific research institute of system researches has held meeting on organizational and legal questions of use and development of contractual forms and methods in the Soviet government. By results of meeting the collection of articles has been published. Authors unanimously recognised existence of various contractual forms in the field of the government and, the main thing, mark the tendency vozras -

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tanija their values.

So V.A.Kikot, considering a problem in historical and sravnitelnopravovom a context, writes about possibility of existence of contracts not only coordination, but also subordinatsionnyh, considering, obviously, «incompleteness of a subordination» to some vlasteotnoshenijah. He notices, that application by the state bodies in a contractual order of various stimulus, reception by their counterparts of advantage of such cooperation even more often appear more management effective remedies, rather than use traditional vlasteotnosheny [583 [584] [585] [586].

The bank of Russia concludes dogovory for achievement of the purposes of activity of Bank of Russia on a circle of the questions defined by the federal act. The will and interest at making contract of Bank of Russia are established by the federal act. According to item ZO FZ «About banks and bank activity» relations between Bank of Russia, the credit organisations and their clients

Are carried out on the basis of contracts if other is not provided federal -

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nym the law.

The central bank of the Russian Federation, makes bank operations and the transactions provided by item 46 FZ «About the Central bank of the Russian Federation (Bank of Russia)». The legal form of registration of transactions is the contract. For example, the contract on extending credit of Bank of Russia; the bailment for hire of precious metals and conducting the account of responsible storage of precious metals in Bank of Russia [587]; the contract on refinancing; the bank account contract on settlement-cash service of public authorities and local governments [588], their organisations, the state off-budget funds, military units, the contract of the bank account with bodies of federal exchequer [589].

The law establishes for Bank of Russia of restriction on a circle of operations and accordingly on a circle of concluded contracts. So, the Bank of Russia has no right to get the action (share) of credit and other organisations, except for the cases provided by the federal act (for example, a controlling interest of the Savings Bank of Russia). The bank of Russia has no right to carry out operation with the real estate, except for the cases connected with maintenance of activity of Bank of Russia and its organisations. Thus the Board of directors of Bank of Russia makes the decision on the purchase and sale of the real estate for maintenance of activity of Bank of Russia and its organisations (authorises for the price and other conditions of making deal). The bank of Russia has no right to be engaged in trading and industrial activity and to conclude corresponding dogovory, except for the cases provided FZ «About the Central bank of the Russian Federation (Bank of Russia)».

The bank of Russia enters contractual relations starting with publichnopravovoj the legal personality. Therefore dogovory Bank of Russia are public contracts.

According to A.V.Dyomin, the public contract it is possible to define as «the strong-willed agreement not less than two subjects of the public law, concluded on the basis of norms of the public law in the public (nation-wide) interests which legal regime contains the elements which are beyond the private (civil) right» [590].

V.I.Novoselov recognised the administrative contract of one of forms of executive activity and defined it as «the agreement between a government or local government executive office, on the one hand, and the citizen, the enterprise or other subject, on the other hand, about realisation of the activity having mutually beneficial value for the state or local government and for the subject of executive activity on questions, entering into the imperious competence of an executive office» [591 [592].

One scientists consider the contract only as individualnopravovoj the certificate which is not concerning sources of law; others consider, that some dogovory from a lump of contracts and agreements can have standard character; and the third approve, that any contract contains rules of law of a special kind - local (or micronorms), therefore all dogovory an essence is -

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tochniki the rights.

With reference to administrative law long time was firm opinion that dogovory executive and administrative activity of the state cannot be administrative law sources and as the legal form in the course of the government, that is, cannot be applied [593].

JU.A.Tikhomirov specifies, that for the public contract specific signs are characteristic: the limited subject structure, a certain subject of the contract, original obligations of the parties and ways of their security [594 [595].

The foreign states also faced a problem of application of administrative contracts in legal regulation practice. Long time legality of contractual agreements which would replace publichnopravovye relations between citizens and the state bodies in the form of the administrative act, was denied classical administrativnopravovoj by the theory, in particular Otto Mayer on the ground that dogovory between citizens and the government, so-called subordinatsionno-legal dogovory, are impossible by definition as in them there is no obligatory for the conventional law an equality of the parties; the contract assumes presence «the equal counterparts, the co-ordinated subjects».

The given point of view substantially overcome in decisions of Administrative court of Prussia, is not divided by the legal theory dominating now; it is unequivocally denied by a modern is administrative-legal science. At the same time other authors, for example Forst - hofom, it is very bright and it is given reason it is shown, modern administrative activity owing to the many-sided nature cannot be limited more to unilateral realisation of the state sovereignty through workings out of norms and their realisation in the form of administrative acts and cannot

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To refuse expansion for the account of "conciliatory legal acts».

The law operating now in Germany «About administrative manufacture» directly considers the public contract as the form of activity of controls. Thereby the legislator has solved unequivocally in favour of the public contract dispute on, whether contractual relations in sphere of the public law [596] are possible in general.

The administrative contract is considered as institute of administrative law, which is developed as a result of the voluntary coordination of will of two (or more) subjects of the administrative law, as one of which the subject of the government (realising the executive authority in public interests), the multilateral certificate establishing (ceasing, changing) the mutual rights and duties of its participants [597] always acts.

Contract-legal regulation is an integral part of legal regulation of financial relations [598 [599]. The following is carried To number of essential signs of financially-legal contracts in the literature: 1) financially-legal dogovory can be concluded between participants of financial relations, and on the party of one of them the body of the state allocated with imperiously-financial powers acts; 2) finansovopravovye dogovory consist in frameworks of realisation of financial activity of the state; 3) financially-legal dogovory are directed on one of three main objectives - collecting, distribution or use of money resources of the state and local governments; 4) the bases and conditions of the conclusion of contracts of financially-legal contracts as a rule are defined legislatively.

I.V.Rukavishnikov characterises the financially-legal contract as follows:

1) Concerning making contract freedom. Participants financially-legal relations, both dominating, and the subordinate, have the right to enter at own discretion also contractual relations or to refrain from it. However «the legal space» in which frameworks they can construct financially-legal contractual relations, as a rule, is is standard limited. It means, that the parties have the right to enter contractual relations, only if such possibility is provided in the law or other standard legal act, and the circle of the bases of occurrence of financially-legal contracts is accurately defined and cannot be changed differently as by a direct standard establishment. And in this case speech does not go about compulsory making contract, as, for example, at compulsion to the conclusion of the public contract. Freedom restriction in making contract for subjects of financial legal relations is reduced to that they have not the right to change at own discretion character of the mutual relations which are based on the beginnings of imperativeness and a legal inequality.

2) Concerning freedom of definition of character of the concluded contract. Participants of financial legal relations do not possess such degree of freedom and have the right to enter only those contractual relations which are permitted or directly are ordered them by the financial legislation.

3) Concerning freedom of definition of conditions (maintenance) of the concluded contract. Imperative intervention in realisation of will of participants of contractual relations is shown in restriction of freedom of contracts. The given circumstance, according to a number of experts, is caused by three principal causes. First, protection of the weakest (weak) party which begins with a stage of making contract and comes to the end with its execution and a liability of infringement; secondly, protection of interests of creditors, threat which can make destructive impact on the civil circulation; and, thirdly, protection of interests of the state, in kontsentriro -

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Bathing kind of a society expressing interests. Subjects of financial legal relations, entering contractual relations, test on themselves imperative influence in a choice of those or other treaty provisions more often. Outlining borders of permissions, the legislator tries to settle in more details models of possible behaviour of subjects of financial legal relations [600 [601].

JU.A.Tikhomirov has offered the following classification publichnopravovyh contracts taking into account their subjects and the maintenance: articles of incorporation; kompetentsionno-differentiating agreements; agreements on delegation of powers; programmno-political dogovory about friendship and cooperation; is functional-administrative agreements; dogovory between the state and not state structures; dogovory about the civil consent; international treaties [602].

From all listed kinds of public contracts the is functional-administrative agreements called in the literature by administrative contracts became object of steadfast scientific research.

Let's consider the problem on a difference between contracts and agreements. A.I.Elistratov, believed, that if the contract always carries out some distributive function concerning counterparts, the agreement (in special value) carries out konstitutivnuju function in the relation to the third parties: it defines their rights and a duty. Doing the given conclusion, specified the author leant against George Ellineka's statements which brought under this category not only all certificates administrative and full courts, but also the laws representing in constitutional monarchy the known agreement between both chambers and a crown. «The agreement from this point of view will be each state certificate which demands for the force of the adjusted will of several persons and is thus deprived distributive character of the contract» [603 [604].

Among modern scientists the similar point of view is divided by JU.A.Tikhomirov approving, that at known identity concept "contract" defensible to apply to regulation of questions statutnofunktsionalnyh, and concept "agreement" — for regulation of the different parties of the joint or adjusted activity. Not putting before itself of the research problem of legal differences between two terms and considering, that in the standard practice the semantic word meaning "agreement" is defined as the contract establishing any conditions, mutual relations, the rights and duties of the parties, and words "contract" — as the agreement on mutual obligations, further concepts the contract and the agreement in the given work will be used as identical.

The analysis of the contractual certificate of Bank of Russia allows to note its following specific signs: public character of the contract (a version of the financially-legal contract); as the obligatory party of the given contract the Bank of Russia or the representative authorised by it acts; the contract consists in frameworks of realisation of bank activity.

Contractual relations in the financial right are non-uniform.

The first group of contracts are directly civil-law dogovo -

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ry, "twisted" in a fabric of financial legal relations. At use of separate contractual designs in the financial right the legislator establishes direct sending to norms of the civil legislation. It means, that at the conclusion of the certain contract subjects of financial relations move to sphere of civil-law regulation [605 [606]. The civil legislation regulates not only an order of making contract and its essential conditions, but also questions of a responsibility of the parties for its inadequate execution.

For example, norms of the bank legislation contain direct sending to civil-law regulation. In contractual relations the Bank of Russia is guided by norms of the Civil code of the Russian Federation and FZ «About the Central bank of the Russian Federation (Bank of Russia)». For example, at making contract of pledge besides norms GK the Russian Federation about pledge the Bank of Russia considers restrictions of item 47 FZ «About the Central bank of the Russian Federation (Bank of Russia)» according to which as maintenance of credits of Bank of Russia can act: gold and other precious metals in standard and measured ingots;

Foreign currency; the bills nominated in Russian and the foreign currency; the state securities [607]. Thus lists of bills and the state securities, suitable for maintenance of credits of Bank of Russia, are defined by the decision of Board of directors of Bank of Russia. The federal act delegates to Board of directors of Bank of Russia the right to establish in what cases and what other values can act as maintenance of credits of Bank of Russia, in what cases as maintenance of credits of Bank of Russia guarantees and bank guarantees can act.

The second group of the contracts used as means of regulation of financial relations, is characterised bolshej by degree of dependence on imperative commands of the authorised subjects of financial legal relations. Data dogovory are characterised by that elements of civil-law principles of construction of relations combine and simultaneously enough in detail settled by financial norms. With reference to bank activity it is possible to allocate public bank dogovory: dogovory the correspondent account of Bank of Russia with the credit organisations, the contract of the bank account with the budgetary organisations.

In public sphere dogovory take up management functions (for example, coordination, submission, the organisations, distributions) with a view of mutual satisfaction of public interests.

According to the federal act the Bank of Russia accepts normative acts on those or other questions of fulfilment by it of the operations resolved by the law and transactions. Thus, the federal act defines the basic requirements to contractual certificates of Bank of Russia. A concrete definition of norms of the federal act about an order of the conclusion, execution and cancellation of contracts of Bank of Russia, contract content requirements, its substantive provisions contain in normative acts of Bank of Russia, published on the basis of the law.

In the contract interest rates under credits and contributions (deposits) should be specified; cost of bank services and terms of their performance, including terms of processing of payment documents; a property responsibility of the parties for breaches of contract, including a liability of infringement of obligations on terms of realisation of payments; and also an order of its cancellation and other essential treaty provisions. In particular, in the contract of rendering of the auditor services, concluded by Bank of Russia with the auditor organisation, the structure of the transferred auditor organisation of the information should be specified, and also responsibility of the auditor organisation for transfer of the received information to the third parties is provided.

The law establishes restrictions to contractual certificates of Bank of Russia on subjects. РІапример, the bank of Russia has no right to carry out bank operations with the legal bodies who do not have the licences for realisation of bank operations, and physical persons, except for cases when the Bank of Russia serves the clients who are not the credit organisations, in regions where there are no credit organisations.

The law makes certain demands to an order of execution of contracts with participation of Bank of Russia. So, the Bank of Russia has no right to prolong the given credits. The exception can be made under the decision of Board of directors of Bank of Russia.

On August, 23rd, 2005 the agreement between the Central bank of the Russian Federation and Federal antimonopoly service of Russia about interaction in the market of bank services directed on control of observance of the antimonopoly law, protection of a competition and antimonopoly regulation [608] is signed. The document have signed the Chairman of Bank of Russia Ignatyev and head FAS of Russia I.JU.Artemyev SEE. The parties have agreed to co-operate in following directions: in Advisory council work on competition protection in the market of financial services at FAS Russia; in work of Commission FAS of Russia on disposal of legal proceeding about infringements by the credit organisations of the antimonopoly law and other standard legal acts about competition protection in the market of financial services; in working out of projects of legislative both other standard legal acts and competition sphere in the market of bank services; in carrying out of the analysis of a competition in the market of bank services. Earlier and FAS Russia have in common developed Bank of Russia and have installed recommendations for banks by granting of the consumer credits, establishing standards of disclosing of the information on real cost of the consumer credit. The joint commission considering infringements of the antimonopoly law in the market of financial services is created also.

Most full the public nature of Bank of Russia is expressed in contracts of the correspondent account with the credit organisations and the bank account with the budgetary organisations having financially-legal 162

Aspects.

The contract of the correspondent account of the Central bank of the Russian Federation with the credit organisations

According to item 28 FZ «About banks and bank activity» the credit organisations on a contract basis can carry out calculations through the correspondent accounts created when due hereunder opened each other. The credit organisation in Russia and abroad should inform on reopened correspondent accounts monthly in Bank of Russia. Correspondent relations between the credit organisation and Bank of Russia osushchest - [609]

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vljajutsja on a contract basis. According to item 15 FZ «About banks and bank activity» the Bank of Russia opens to the registered bank the correspondent bank account of Russia for charter capital payment.

In conformity sp. 1.2 parts of 2 Positions of Bank of Russia «About clearing settlements in the Russian Federation» for carrying out of settlement operations each credit organisation located in territory of the Russian Federation and having the licence of Bank of Russia on realisation of bank operations, opens in a place of the finding one correspondent account in division of a settlement network of Bank of Russia [610 [611]. Thus, corresponding account opening in Bank of Russia is a duty of the credit organisation. If a choice ban - kov-correspondents and opening in them of corresponding accounts are based on will of the credit organisation and are caused by various business factors, and first of all volume of counter payments corresponding account opening in Bank of Russia is the requirement of the current legislation and a necessary condition of functioning of the credit organisation.

It is necessary to notice, that the credit organisation opens a corresponding account in Bank of Russia even before reception of the bank licence. The corresponding account opens Bank of Russia of the credit organisation after its state registration and "works" in a mode of the memory account to 100 %-s' payments by founders of the charter capital and delivery of this credit organisation of the licence for realisation of bank operations. At a presentation of the documents confirming 100 %-s' payment of the declared charter capital of the credit organisation, the Bank of Russia in 3-day term grants the credit organisation the licence for realisation of bank operations.

Only after representation by the credit organisation in Bank of Russia of documents for opening of the corresponding account, specified in gl. 6 Positions of Bank of Russia, including licences for realisation of bank operations, and signings of the contract of a corresponding account the so-called memory account start to function as the high-grade corresponding account which appointment according to bank rules is the account of free money resources of the credit organisation and calculations with it.

Considering stated, use in item 15 FZ «About banks and bank activity of" the term «the memory account» instead of «the correspondent account» is represented expedient. Corresponding account opening in Bank of Russia allows the credit organisation to participate in calculations through payment system of Bank of Russia (the centralised calculations) which has certain advantages before calculations with use of the corresponding accounts, the open credit organisations in banks-correspondents.

First, use for calculations by the credit organisations of the means placed on bank accounts of Russia, has the zero credit risk.

Secondly, the payment system of Bank of Russia is characterised by universality of calculations. In connection with that that each credit organisation is obliged to have a corresponding account in Bank of Russia, there is possible a realisation in territory of the Russian Federation of calculations of any credit organisation with any other credit organisation by means of the corresponding settlement-cash centres (RKTS).

To all participants of calculations through payment system of Bank of Russia as to the credit organisations (branches) which have opened corresponding accounts in RKTS, and RKTS, for the purpose of their unequivocal identification at carrying out of settlement operations bank identification codes (BIK) participants of calculations are appropriated.

Thirdly, the payment system of Bank of Russia is distinguished by reliable functioning, application of modern, constantly developing means of processing and an information transfer [612].

Appointment and features of a mode of the correspondent account of the credit organisation in Bank of Russia unlike the corresponding accounts opened by the credit organisation in banks-correspondents, are caused by the difficult legal nature of Bank of Russia which in correspondent relations with the credit organisations acts in two qualities: as the party of the civil-law contract and, as the state body possessing administrativnovlastnymi powers.

Opening, renewal, closing of correspondent accounts to the credit organisations carries out the settlement-cash centre (further - RKTS). Head RKTS, interdistrict RKTS, regional RKTS are structural divisions of Bank of Russia, carrying out bank operations with money resources [613 [614]. The difficult legal nature of Bank of Russia as the parties of the contract of a corresponding account is shown in activity RKTS, concluding on behalf of Bank of Russia the specified contract.

In turn, the territorial establishment is the isolated division of Bank of Russia, carrying out on territory of the subject of the Russian Federation a part of its functions according to Position «About territorial uchrezh -

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denijah Bank of Russia »’, other normative acts of Bank of Russia and entering into the uniform centralised system of Bank of Russia with vertical structure of management. According to item 84 of the Law on the Central Bank territorial establishments of Bank of Russia are not legal bodies, have no right to make of the decision of standard character.

It is necessary to agree with the opinion stated in the literature on that that, edition of item 83 of the Law on the Central Bank where RKTS are mentioned as the independent structural divisions entering into centralised system of Bank of Russia with vertical structure of management along with territorial both other establishments and the organisations of Bank of Russia demands specification. Dogovory corresponding accounts with the credit organisations consist head RKTS who operates on behalf of Bank of Russia on the basis of the power of attorney which have been given out as retrust by the chief of territorial establishment of Bank of Russia [615].

The account contract consists for the term adjusted by the parties and defines an order of settlement service, the right and a duty of the credit organisation (branch) and Bank of Russia at fulfilment of settlement operations under the correspondent account (subaccount), a way of an exchange of settlement documents with Bank of Russia, an order of payment for Russia rendered by Bank settlement services, a responsibility of the parties for default or inadequate execution of contractual obligations, other conditions provided by the legislation and standard documents of Bank of Russia.

The bank of Russia enters in financially-legal relations with the credit organisations opening corresponding accounts in Bank of Russia. The bank of Russia carries out the imperious powers, including on regulation of the centralised interbank calculations and the control over their carrying out.

First of all, the Bank of Russia through RKTS supervises maintenance by the credit organisation of the liquidity at the level providing uninterrupted carrying out of calculations with other credit organisations.

The analysis of a mode of a considered corresponding account allows to allocate its following features, uncharacteristic for the corresponding accounts opened by the credit organisations in banks-correspondents.

First, by means of considered corresponding accounts the Bank of Russia supervises legitimacy and timeliness of payment by founders of 100 % of the declared charter capital of the created credit organisation. The neopayment or incomplete payment of the charter capital in time, established item 7.1 of the Instruction of Bank of Russia from January, 14th, 2004 № 109 [616], is the basis for the reference of Bank of Russia in court with the requirement about liquidation of the credit organisation (federal act item 15 «about banks and bank activity»).

Secondly, by means of corresponding accounts the Bank of Russia regulates liquidity

Bank system. Such regulation is carried out by two ways:

1) by granting to the credit organisations of credits for maintenance of their liquidity.

Thereby the Bank of Russia realises one of the functions established by item 4 of the Law on Bank of Russia according to which it is the creditor of the last resort for the credit organisations, will organise system of their refinancing. The bank of Russia according to Position from August, 4th, 2003 N 236-P [617] gives to the credit organisations only the credits provided with pledge of securities: intraday credits, credits overnajt and pawn credits. Conditions of granting and repayment of credits of Bank of Russia are defined in the general credit contract constituted under the form established by bank rules;

2) by attraction in deposits of money resources of the credit organisations with a view of withdrawal of excessive liquidity of bank system.

According to item 1.6 of Position of Bank of Russia from November, 5th, 2002 № 203-P [618] transfer of means in the deposit opened in Bank of Russia, is made by the payment commission of the credit organisation on write-off of means from the corresponding account opened in division of a settlement network of Bank of Russia, into the account under the deposit account, opened in the authorised establishment/division of Bank of Russia. Return of the sum of the deposit opened in Bank of Russia, and payment of the added percent on the deposit are made by the payment commission of Bank of Russia on a corresponding account of the credit organisation in division of a settlement network of Bank of Russia.

Thirdly, by means of corresponding accounts the Bank of Russia carries out supervision of performance by the credit organisations of specifications of obligatory reserves. According to Position of Bank of Russia «About clearing settlements in the Russian Federation» formation of obligatory reserves is made by transfer of money resources from the corresponding account of the credit organisation opened in Bank of Russia, into the account under the account of obligatory reserves.

At infringement of specifications of obligatory reserves the Bank of Russia has the right to write off in an indisputable order from the corresponding account of the credit organisation opened in Bank of Russia, the sum nedovnesennyh means, and also to collect from the credit organisation judicially the penalty in the size established by Bank of Russia (item 38 of the Law on Bank of Russia).

And, at last, fourthly, by means of a corresponding account the Bank of Russia supervises realisation of liquidating procedures in the credit organisation as such account is used by the liquidating commission or competitive operating (liquidator) as the basic account of the debtor. According to Federal act item 46 «About an inconsistency (bankruptcy) of the credit organisations» the competitive managing director is obliged to use during bankruptcy proceedings only a corresponding account of the credit organisation recognised as the bankrupt, opened in establishment of Bank of Russia on which in an order defined by normative acts of Bank of Russia, the rests of money resources from the corresponding accounts of the credit organisation opened in other credit organisations, and also other money resources are listed, including the obligatory reserves deposited by the credit organisation in Bank of Russia.

The bank account contract

The central bank of the Russian Federation with the budgetary organisations

The order of service of accounts of budgets of all levels is established item item 2

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155 and item 2 of item 156 BK the Russian Federation.v current legislation frameworks serve - [619] vanie accounts of budgets it is carried out by the Central bank of the Russian Federation; service of budgetary accounts in other credit organisations probably only for nedotatsionnyh subjects of the Russian Federation, and also in absence cases in territory of establishment of Bank of Russia or at impossibility of performance by it of powers on service of the budgetary account.

Service of accounts of budgets of all levels in the Central bank allows to accumulate actually all means and financial streams of public subjects for the uniform budgetary account therefore the state has a possibility to use them as credit and investment resources, to supervise movement of payment commissions and realisation of payments for and on behalf of bjudzhetopoluchatelja. Similar connection obespechitelnyh functions and kontroly-ju-supervising powers probably to explain that the legislator aspired to realise the unanimity of budgetary system. The unanimity of budgetary system is fixed the item 29 Budgetary codes of the Russian Federation also mean unity of legal base, monetary system, forms of the budgetary documentation, principles of budgetary process in Poc - [620] sijskoj Federations, sanctions for infringements of the budgetary legislation, and also a uniform order of financing of expenses of budgets of all levels, conducting book keeping of means of the federal budget, budgets of subjects of the Russian Federation and local budgets.

The position selected the federal legislator can be explained and that the budgetary funds which are on service in the Central bank, appear the most protected from financial risks. Similar protection is provided with issue function of the Central bank of the Russian Federation and restrictive (and sometimes and prohibitive) is administrative-legal regimes. Occurred in the Russian Federation in 1998 financial crisis has visually shown, that bankruptcy of one credit organisation has inevitably entailed an inconsistency of others and as a result has arisen well-known to the financial market "domino effect" at which and the Central bank of the Russian Federation has not executed the basic function - has not provided (and hardly could provide) stability of the Russian rouble. Hence, creation of the legal mechanism guaranteeing increase of reliability of all bank system, especially regarding service of public financial assets should become one of the main tasks of the federal legislator.

In modern conditions of development of financial bank system of the Russian Federation the problem of service of accounts of subjects of the Russian Federation and municipal unions [621 [622] has great value. The Financially-legal conflicts arising in given sphere, became time and again a subject of judicial consideration. The solving position concerning legitimacy of service of accounts of budgets of all levels the Central bank of the Russian Federation has been stated on June, 17th, 2004 by the Constitutional Court of the Russian Federation which has considered the problem about soot -

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vetstvii item 2 of item 155 and item 2 of item 156 BK the Russian Federation Constitutions of the Russian Federation.

Point 6 of item 4 FZ «About the Central bank of the Russian Federation (Bank of Russia)» regarding service by Bank of Russia of accounts of budgets of all levels clauses about its application in case other is not established by federal acts. Similar exceptions began to be entered by the legislator in annually accepted federal acts about the federal budget for the next fiscal year.

So, item 4 and 5 items 49 of the Federal act from December, 24th, 2002 № 176-FZ «About the federal budget for 2003» [623] established, that in 2003 service of accounts of budgets of subjects of the Russian Federation which is not receiving the grants for alignment of level of budgetary security from the federal budget, could be carried out by the credit organisations on a competitive basis under specially concluded agreement. Such nedotatsionnye subjects of Federation have acquired the right to open the account in any credit organisations as well for service of calculations under the transactions made with the state securities. Moreover, item 6 of item 49 of the Federal act «About the federal budget for 2003» has suspended item 2 and 3 items 156 of the Budgetary code of the Russian Federation and paragraph 9 of item 1 of item 14 of the Federal act «About competition protection in the market of financial services» regarding an order of service of accounts of budgets nedotatsionnyh subjects of the Russian Federation.

The similar legal regime of service of accounts of budgets of subjects of the Federation receiving the grants from the federal budget, is established by article 43 of the Federal act from December, 23rd, 2003 № 186-FZ «About the federal budget for 2004» [624].

Thus, challenged positions of the Budgetary code of the Russian Federation in system interrelation with corresponding norms of federal acts about the federal budget for the next fiscal year do not correspond with the constitutional principle of equality of subjects of the Russian Federation in mutual relations with federal public authorities (ch. 4 items 5 of the Constitution of the Russian Federation) as dotatsionnyh subjects of the Russian Federation oblige to enter legal relations with Bank Rossi on service of accounts of budgets, and nedotatsionnye subjects of the Russian Federation solve this question at own discretion.

Analyzing the established order of service of budgetary accounts of all levels Bank of Russia, J.A.Krohina puts following questions: «as in other credit organisations restrictions on opening of accounts of the local budget and the budget of subjects of the Russian Federation correspond with the constitutional principles of free moving of financial assets, supports of a competition, a monopolisation interdiction (article 8, a part 1; 34, a part 2, Constitutions of the Russian Federation)? Whether creates such regulation of the precondition for the economic activities directed on monopolisation and an unfair competition? How it is possible to estimate corresponding positions on service of budgets by Bank of Russia and its territorial establishments in the light of antimonopoly law requirements?».

According to item 6 of item 4 of the Federal act «About the Central bank of the Russian Federation (Bank of Russia)» the Bank of Russia carries out service of accounts of budgets of all levels of budgetary system of the Russian Federation by means of carrying out of calculations on the instructions of the executive authority authorised bodies to which the organisation of execution and execution of budgets are assigned. In such legal regime material budgetary laws, and also the right-requirement to the budgetary account remain for the corresponding proprietor of budgetary funds in the name of the executive authority authorised body. The budgetary laws allowing the public proprietor to choose authorised bank for service of the budgetary account, concern protsedurno-remedial guarantees of maintenance of budgetary process.

The constitutional Court of the Russian Federation develops a legal position, according to which «owing to leadership of the Constitution of the Russian Federation and federal acts (item 4, ch. 2, Constitutions of the Russian Federation) on the Central bank [625]

The Russian Federation in the course of realisation of the functions by it... The constitutional principles of free moving of the goods, services and financial assets, supports of a competition, economic activities freedom to the full extend... »(Definition from January, 15th, 2003 № 45-0« About refusal in taking cognizance of inquiry of Arbitration court of of Moscow about check of constitutionality of item 12 and 30 Federal acts «About competition protection in the market of financial services»).

C with item 215.1 BK the Russian Federation which provides transfer of accounts of the budget to Federal exchequer of the Russian Federation which holds accounts in the Central bank of the Russian Federation on January, 1st, 2006 has started to operate. In July, 2005 the Bank of Russia has let out the letter «About the measures accepted by territorial establishments of Bank of Russia to the organisations, serving accounts of budgets». The given document offers to apply influence measures to the credit organisations serving the accounts of budgets, and in case of revealing of the similar facts to direct

1 jao

Data in organs of the Prosecutor's Office.

The federal act «About banks and bank activity» especially reserves the requirements shown to contracts on service of accounts of budgets, concluded between the credit organisations and corresponding bodies state or municipal authority. Such contract should contain mutual obligations of the parties, provide their responsibility, and also conditions and forms of the control over use of budgetary money resources.

One of the major actions of Bank of Russia on perfection of bank system of the Russian Federation, bank supervision, the financial markets and payment system is participation in preparation of changes and additions in the Russian legislation (the Civil code of the Russian Federation and FZ «About legalisation counteraction (washing up) the incomes received criminal by, and finansiro - [626] [627] vaniju terrorism»), the bases providing, in particular, definition for cancellation at the initiative of the credit organisation of the contract of the bank account (contribution) [628 [629] [630].

In the Concept of reforming of budgetary process in the Russian Federation in 2004-2006, the Russian Federation approved by the governmental order from May, 22nd, 2004 № 249 (section 4 «Budgets of operating and accepted obligations»), is noticed, that along with allocation of operating and accepted obligations in budgetary process is offered to discriminate the obligations following from standard legal acts (public obligations) and from the contracts (agreements), one of which parties is the state (municipal) establishment (civil-law obligations). If under civil-law obligations rigid requirements of their acceptance (limits of budgetary obligations) for public obligations it is supposed to develop and enter the budgetary procedures providing their unconditional execution be established. The stated approach is represented insufficient, as it does not mention legal bases of the compulsory debt collection of public formations (the Russian Federation, subjects of the Russian Federation, municipal unions), and not just the state (municipal) establishments.

Till now the legislation and modification of articles of the laws connected with procedure bezaktseptnogo of write-off of money resources from accounts of banks (in case of opening of criminal case against the client of bank) is not studied.

The problem in bank practice about target use of money resources of fund of social insurance is actual. Raschetnokassovye the centres of Bank of Russia and the credit organisations attentively consider references of the state bodies, citizens and the organisations about necessity of target use of means of the state social insurance at transfer of money resources under grants bodies of Fund of social insurance of the Russian Federation to the enterprises - to debtors for payment to workers of grants on the state social insurance and divide the approach of the authorised bodies about importance of addressing of social payments. The problem consists that under the current legislation (chapter 45 of the Civil code of the Russian Federation) money resources of Fund of social insurance of the Russian Federation are listed by Fund on settlement, current accounts of the enterprises, establishments, the organisations for payment to employees of the given managing subjects of grants on the state social insurance. At sufficiency of money resources on settlement, the current account of the managing subject of the grant on the state social insurance are paid by administration of the managing subject to the employee, that is Fund means reach on a special-purpose designation. At insufficiency of money resources on settlement, the current account of the managing subject at receipt on it of money resources from Fund of social insurance of the Russian Federation there is a card file clearing by rules of article 855 of the Civil code of the Russian Federation. Thus, in the presence of a card file to the account of the managing subject of the grant on the state social insurance do not reach the concrete employee, that is it is observed neobespechenie a principle of target use of money resources of Fund.

Taking into consideration sharp social intensity on the given question it is necessary to develop the mechanism of protection of money resources of Fund of social insurance of the Russian Federation for maintenance of their use at transfer through financial institutions strictly on a special-purpose designation. In the developed conditions it is represented expedient at legislative level to enter the mechanism of security of the given accounts from indisputable (bezaktseptnogo) write-offs, and at level departmental normotvorche - stva the Central bank of the Russian Federation to consider the problem on introduction of the special account for money resources of Fund of social insurance of the Russian Federation similar to the account with a recognised part «7» for payments of wages.

It is necessary to notice, that target financing - a problem difficult and not found adequate reflexion in the Russian legislation. At an operating regulation of sequence of payments (item 855 of the Civil code of the Russian Federation) the enterprises having certain financial embarrasments and a card file to the bank account, are actually paralysed. Special-purpose designation means including grants on social insurance (payment of sick-lists, grants at a birth of the child etc.), arriving into the account of the enterprises - debtors, "are eaten" by a card file and do not reach addressees. As banks are in the general economic space, state regulation of development of bank system demands fastening of rules of law about certain financial liberalisation, granting of additional variants of a legal regime of the bank account. Measures on a partial unblocking of the accounts having a card file, and maintenance of use of means on a special-purpose designation are necessary.

Fastening in article 855 of the Civil code of the Russian Federation of position that at insufficiency of money resources on the account of the client for satisfaction of all requirements of means of a special-purpose designation shown to it (budgetary financing, transfer of means from off-budget funds etc.) are written off from the account out of turn can be an exit from the created situation and go exclusively on the established purposes. Before legislative settlement of the developed situation in pravoprimenitelnoj to bank practice it is obviously necessary to take into consideration, that article 39 of the Constitution of the Russian Federation guarantees to citizens social security on age, in case of illness, physical inability, loss of the supporter, for education of children and in other cases, statutory; article 16 Federal zako -

On «About bases of obligatory social insurance» fixes, that means of budgets of funds of social insurance do not come under to withdrawal.

It is necessary to notice, that actually at use of the bank account of the enterprises the complex of legal relations of various character is formed. Relations between the enterprise and the serving credit organisation under the bank account contract carry grazhdansko - legal character, and relations on payment of means of social insurance are publicly - legal. There are all bases to consider that, in similar publicly - legal relations the bank account contract (the private beginnings of civil law) is used only as the transit mechanism for means of the social funds which are not means of the enterprise. Therefore, a priority in this case should have publicly - legal relations, as promoting realisations of constitutional laws of citizens.

Thus, proceeding from a public orientation of use of money resources of grants on the state social insurance it is necessary to draw a conclusion that at receipt of the specified money resources on the settlement, current bank account of the enterprise from bodies of fund of social insurance in the presence of a card file to the bank account under unpaid payment documents on transfer of money resources in budgets of various levels and payment of court orders money resources of grants on social insurance nevertheless should not go on card file clearing as it would lead to no-purpose use of money resources of Fund of social insurance of the Russian Federation that is inadmissible. In similar situations on social insurance financial institutions should give out money resources of grants to the managing subject for payment to the worker that will to the full be adjusted with positions of the Constitution of the Russian Federation and requirements of the legislation on [631] target use of means of budgets and off-budget funds and addressings of social payments.

The considered questions cause to stop on remedial problems of contractual certificates of Bank of Russia. The scientific analysis of process of making contract is of great importance both on theoretical, and at practical level.

At studying of remedial problems the special urgency is got by questions of write-off of money resources from the bank account of the debtor on judgements [632 [633] [634]. Long time was necessary at legal regulation of execution of judgements on collecting of money resources C of public formations at the expense of money resources of treasury of corresponding level it is necessary to achieve a coordination of the legislation on the final process, not containing time of norms about features of execution of judgements on collecting of money resources from treasury of corresponding level, and the budgetary legislation fixing a principle of a target expenditure of money resources. The reference to the given problem is rather timely. The settlement-cash centres of Bank of Russia and the credit organisations serving bank accounts of budgets of subjects of the Russian Federation or budgets of municipal unions, were in inconvenient position in a choice of the rule of law which are coming under to application that has found reflexion in judiciary practice.

C one party, on point 2 of article 854 of the Civil code of the Russian Federation it is necessary to make indisputable write-off from the bank account as there is a decree. Otherwise the judicial police officer-executor or vzyskatel can raise the question about collecting from penalty bank in the federal budget for default of a judgement at a rate of 50 % from the unsatisfied sum and 100 % of the sum not withheld on the executive document it agree Federal act item 91 «About final process».

C other party, the debtor in the name of the financial body executing the budget of corresponding level, insists on application of norms about budgetary immunity (article 239 of the Budgetary code of the Russian Federation) according to which it is possible to draw a conclusion that execution of judgements on collecting of money resources at the expense of the budget of the corresponding level, not concerning underfinancing and losses from illegal acts, demands the consent of the bodies executing the corresponding budget.

Scientific research of the argument about application to legal relations on write-off of means from accounts of budgets of subjects of the Russian Federation and budgets of municipal unions of item Z item 845 of the Civil code of the Russian Federation in system interrelation with item 286 item, 287 Budgetary codes of the Russian Federation is necessary. The question was topical: Whether the settlement-cash centres of Bank of Russia to write off money resources are obliged at receipt from vzyskatelja or the judicial-police officer executor of the collection order with the enclosed executive document on collecting of determinate sums of money resources from the subject of the Russian Federation or municipal union in the name of the financial body executing the budget of corresponding level, at the expense of means of treasury of the subject of the Russian Federation or municipal union treasury accordingly, taking into consideration presence of the contract of the bank account with financial body on balance account 40201 “Means of budgets of subjects of the Russian Federation” or balance account 40204 “Means of local budgets” and absence at RKTS any remarks on collection order registration.

Vzyskateli and judicial police officers-executors prove the requirements about execution by the settlement-cash centres of the exposed collection orders by that without the order of the client write-off of the money resources which are on the account, is supposed under the decree (item 2 of item 854 of the Civil code of the Russian Federation) and bank or other credit organisation, carrying out service of accounts of the debtor, in three-day term from the date of reception of the executive document from vzyskatelja or the bailiff - the executor is executed by requirements containing in the executive document on collecting of money resources or do a mark about full or partial default of the specified requirements in connection with absence on accounts of the debtor of money resources, sufficient requirements for satisfaction vzyskatelja (Federal act item 6 “About final process”).

According to financial bodies, proceeding from item 239 of the Budgetary code of the Russian Federation, the collecting reference on budgetary funds on the basis of the judicial certificate providing collecting on grazhdanskopravovym to obligations (for the put electric power, the gas, the executed repair work, the rendered services) demands the consent of financial body, and at absence in RKTS such consent of financial body or at a direction financial body in RKTS written refusal of payment of the collection order exposed on the basis of the similar executive document, the settlement-cash centres should return vzyskatelju or to the bailiff - to the executor the arrived collection orders with the enclosed court orders about collecting from treasury subek - [635] that of the Russian Federation or municipal union treasury. Otherwise financial bodies warn RKTS about a liability of infringement of principles of immunity of budgets and a target expenditure of money resources of the budgets, arising complexities in financing of social programs, etc.

Thus, it is required doktrinalnoe judgement of legitimacy and validity of write-off by the settlement-cash centres of Bank of Russia of money resources from accounts of budgets of subjects of the Russian Federation and budgets of municipal unions under court orders about collecting of money resources at the expense of treasury of the subject of the Russian Federation or municipal union treasury.

Item 239 of the Budgetary code of the Russian Federation, establishing immunity of budgets is represented, that, is not norm of direct action; the mechanism of realisation of the item of item 286 and 287 Budgetary codes of the Russian Federation about an order of write-off of budgetary funds from accounts of budgets of subjects of the Russian Federation and from accounts of local budgets without the order of their financial bodies is not provided by the current legislation, therefore it is necessary to mean, that the credit organisation makes write-off of money resources on the basis of settlement documents and within the rest of money resources on the account (chapter 45 "Bank account" of the Civil code of the Russian Federation). Such conclusion is made on the basis of the analysis of judiciary practice of the Supreme Court of the Russian Federation (the decision from April, 4th, 2003 № GKPI 03-213; from March, 28th, 2002 № GKPI 2001-1482; from February, 27th, 2002 № GKPI 2001-1790, 2002-139; from October, 22nd, 2001 № GKPI 2001-1345, from July, 19th, 2001 № GKPI 2001-864) [636] in which approaches to pravoponimaniju ideas of the legislator in definition of the mechanism of realisation of norms about budgetary immunity are given.

Taking into consideration presence of a certain collision of the legislation on final process, bank and budgetary zakonoda -

telstva in a question of write-off of money resources from accounts of budgets under the decree it is necessary to use the Decision of the Constitutional Court of the Russian Federation from May, 14th, 2003 № 8-П in respect of the account of a legal position of court about the permission of a collision of the bank legislation and the legislation on final process.

Concerning a question on write-off of money resources from the account of the budget of municipal union it is necessary to consider, that the priority is given by the Constitutional Court of the Russian Federation to the constitutional principle of the executed judgement: in point 5 of the specified Decision it is underlined, that “protection of the broken rights cannot be recognised by effective if the judicial certificate in due time is not executed...”, also the attention that in development of the specified constitutional positions the Federal constitutional law from December, 31st, 1996 “About the judiciary of the Russian Federation” (in edition from December, 15th, 2001) is paid Defines, that the decisions which have entered validity of federal courts are obligatory for all without an exception of public authorities, local governments, public associations, officials, others physical and legal bodies and come under to strict execution in all territory of the Russian Federation; court decision default attracts the responsibility provided by the Federal act.

Actual for the reference to questions of execution of judgements on collecting of money resources at the expense of treasury of the subject of the Russian Federation or treasury of municipal union from accounts of bodies of federal exchequer in connection with the conclusion of agreements on transfer of cash execution of budgets of subjects of the Russian Federation or budgets of municipal unions to bodies of federal exchequer and opening in this connection to bodies of federal exchequer of bank accounts on balance accounts 40201 «Means of budgets of subjects of the Russian Federation» and 40204 of "Means of local budgets» financially-legal science is.

Legislation perfection on the mentioned problem will allow to resolve the designated collisions of the financial and administrative, budgetary and bank legislation in reference questions on collecting judgements on money resources of treasury of subjects of the Russian Federation and municipal unions taking into account the constitutional principle of the executed judgement and a principle of target use of budgetary funds, from positions of an optimum combination private and public interests.

Short stories of the budgetary legislation and the legislation on final process are rules that execution of court orders by financial bodies and federal exchequer is carried out under the general rule without the reference in bank of the debtor, only to budgetary establishments. If they have not only personal accounts in bodies of federal exchequer, but also bank accounts in RKTS Bank of Russia or the credit organisations write-off is made from the budgetary account under the statement vzyskatelja and services of bailiffs, it just an exception provided by the Budgetary code of the Russian Federation [637].

Thus it is necessary to draw a conclusion, that the designated collision of the civil and budgetary legislation in questions of write-off of money resources from the bank account on judgements on collecting from treasury of corresponding level has been resolved in favour of budgetary law principles, on what the attention in the literature [638] is paid.

So, among legal acts of the Central bank of the Russian Federation a special place occupy dogovory, as the form of legal acts of Bank of Russia in sphere of financial activity of the state. The bank of Russia concludes dogovory for achievement of the purposes of activity of Bank of Russia on a circle of the questions defined by the federal act. The will and interest at making contract of Bank of Russia are defined by the federal act.

The contract of the correspondent account with the credit organisations, the contract of the bank account with the budgetary organisations are publichnopravovymi the contracts having financially-legal aspects.

See: SHotta O.V.Sistema of legal acts in modern Russia. With. 52.

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A source: Pastushenko Elena Nikolaevna. Legal acts of the Central bank of the Russian Federation: financially-legal aspects of the theory. The dissertation on competition of a scientific degree of the doctor of juridical science. Saratov - 2006. 2006

More on topic § 5. Contractual certificates The central bank of the Russian Federation:

  1. § 5. Contractual certificates of Central bank of the Russian Federation
  2. § 2. Legal certificates of Central bank of the Russian Federation in system of legal certificates of public authorities of the Russian Federation
  3. § 4. Requirements to legal certificates of Central bank of the Russian Federation
  4. § 1. Value and criteria of classification of legal certificates of Central bank of the Russian Federation
  5. § 3. The purposes and functions of legal certificates of Central bank of the Russian Federation
  6. § 4. Concept and kinds interpretatsionnyh certificates of the Central bank of the Russian Federation
  7. § 4. Concept and kinds interpretatsionnyh certificates of Central bank of the Russian Federation
  8. § 5. Legal certificates of Central bank of the Russian Federation as financial law sources
  9. § 3. Concept and kinds pravoprimenitelnyh certificates of Central bank of the Russian Federation
  10. § 3. Concept and kinds pravoprimenitelnyh certificates of the Central bank of the Russian Federation
  11. CHAPTER 3. KINDS of LEGAL CERTIFICATES of CENTRAL BANK of the RUSSIAN FEDERATION