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§ 3. Features of a legal status of Bank of Russia as body of state regulation of bank activity.

In modern economic conditions of development of many states of the world discussion about a role and functions of the central banks, begun practically from the moment of their occurrence, it is possible to tell, has received an additional impulse.

Many bank experts and scientists connect efficiency of a financial policy carried out by the central banks with their powers and degree of independence of governmental bodies.

At a stage of formation of the central banks in the various countries crediting of commercial banks was their basic function. However in the course of the further development of economic activities of function of the central banks have substantially extended. Carrying out of a monetary policy became their main problem. At the moment anybody any more does not deny importance of such function of the central banks, as maintenance of reliable system of payments. Carried out in many countries the central banks the role of the distributor of financial assets and the controller of bank system is not less important, than the monetary policy.

The first central bank has received such powers in 1913 though many years them practically did not use. Other central banks began to carry out supervision of activity of banks in the thirties through institute so-called «bank inspektoratov». The bank of England has officially taken up responsibility for carrying out of bank supervision only by the end of 70th years, and in a number of the countries (for example, in Germany) the central bank at all had until recently no supervising rights though promoted strengthening of position of private banks.

The basic functions of banks as it is marked in works of scientific - financiers, follow from three main functions of money: an instrument of payment, [58]

Measure of cost and means накопления126. According to it triune function of the central bank is considered also: 1) realisation of a monetary policy; 2) the organisation of system of payments; 3) the control over bank activity.

Successful performance of functions of all credit system of the country to a great extent depends on presence of the control organised at legislative level behind activity of banks which would guarantee safety of means of their creditors. Such functions in our country are assigned to the Central bank of the Russian Federation.

In the separate countries control functions concerning bank system besides the Central Bank carry out the Ministry of Finance, the Ministry of Economics or other specially created body.

In the economic literature following principal views of the state control over activity of banks are allocated:

- The interdepartmental control;

- The interdepartmental control;

- The regional control;

- Non-departmental контроль127.

For realisation of each of kinds of the state control corresponding control bodies are created. The interdepartmental control over activity of banks, is carried out by the Central bank of the Russian Federation.

The interdepartmental control is closely interconnected with the interdepartmental control and carried out by association of efforts of some the interested ministries and departments through committees on affairs of banks and so forth. The committee on affairs of banks can be created as the independent organisation or at Board of the Central bank. It is possible to allocate following possible directions of activity of committee on affairs of banks:

126 See: In the same place. With. 26.

127 See, for example: the Bank portfolio - 3./Otv. red. JU.I.box, JU.B.rub, Century And Soldatkin. M., 1995. With. 58-60.

- Questions of a bank policy;

- Definition of a policy concerning assistance to placing of the state loans;

- Regulation of developments of bank system;

- The organisation and perfection of bank supervision.

In our country of function of such body carries out National

1ОЯ

Bank board.

The regional state control, according to authors of the above-stated classification of kinds of the state control over activity of banks, is carried out by the special control bodies created by authorities of subjects of Federation. However, the given point of view, in our opinion, is unreasonable as the monetary and credit policy along with financial constitutes a basis of state regulation of economy. Being the major component of economic policy of the state monetary and credit relations should be under construction on the basis of nation-wide interest. Without uniform conditions of bank activity existence of uniform economic space and, as consequence, the uniform state is impossible. Regulation of bank activity is within the competence of the Russian Federation and cannot be carried out by the bodies created by subjects of Federation as one of the major constitutional principles - a federalism principle in this case is broken.

The non-departmental control is made by forces of specially created non-departmental bodies (control chambers, auditing committees and other). Special divisions for realisation of checks and audits under tasks of law enforcement bodies Here can join.

Thus the most detailed control over activity of banks is carried out, undoubtedly, Bank of Russia. It is the major subject who is carrying out financially-legal regulation in frameworks

128

See: st, 12,13 Federal acts «About the Central bank of the Russian Federation (Bank of Russia)».

9 bank systems. Main objectives of activity of Bank of Russia are:

Protection and maintenance of stability of rouble; development and strengthening of bank system; maintenance of effective and uninterrupted functioning

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Systems of calculations.

The bank of Russia takes the central place in bank system of the country; besides realisation of the bank operations similar to operations, the carried out credit organisations, carries out a number not functions peculiar to them, it is allocated by state-imperious powers on the organisation and functioning of bank system as a whole.

The question on a legal status of Bank of Russia is debatable in domestic legal science. In the scientific literature the various points of view on the legal nature of the Central bank of the Russian Federation which can be subdivided into five basic groups express: 1) the Bank of Russia is an official body; 2) the Bank of Russia is the state unitary enterprise; 3) the Bank of Russia is the enterprise and establishment simultaneously [59 [60] [61] [62]; 4) the Bank of Russia is the state body which has been not included by the legislator in system of federal enforcement authorities [63]; 5) the Bank of Russia is a noncommercial organisation, the legal body of a special sort, federal public authority of a special sort [64]. The general sign characterising a legal status ► of Bank of Russia irrespective of, in what quality it acts, carrying out

The functions assigned to it, the status of the legal person based on the federal property is given to it the Federal act «About the Central bank of the Russian Federation (Bank of Russia)». Under the general rule

The status of Bank of Russia fixed in the given law should correspond to norms of the Civil code of the Russian Federation, regulating the general

і the hardware

Positions about legal bodies. However the specified law defining, that Bank of Russia is the legal body, does not establish its organisation-legal form as legal person and does not define its place in system of state governing bodies of the Russian Federation. This blank in the current legislation has negative influence on functioning of all bank system of the state, complicates high-grade interaction of Bank of Russia with public authorities, credit and other organisations. Definition of the legal status has not only theoretical, but also practical value.

It is necessary to approach to research of the given problem not only with financially-legal, but also from civil-law positions. According to scientists-tsivilistov legal bodies in the Russian Federation should create «in a statutory order and in various, but it is obligatory in the organisation-legal forms provided by the legislation. Only in this case at the moment of the creation legal bodies get the legal capacity. To enter something, not statutory, their founders (founders) have not the right» [65 [66] [67]. Therefore in constituent instruments, and also in legislative and other legal acts of public authorities on which basis are created and legal bodies operate, their name containing instructions on the organisation-legal form should be without fail reflected. For definition of a kind and the organisation-legal form of Bank of Russia, as well as any other legal person, the purposes and character of its activity, and also feature of functions carried out by it have crucial importance. According to the federal act «About the Central bank of the Russian Federation (Bank of Russia)» reception

1 profits is not the purpose of activity of Bank of Russia. The organisations, in that

Number Bank Russia which do not have as a main objective activity extraction of profit and not meting her between participants, admit

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The noncommercial organisations.

According to point 3 of article 50 of the Civil code of the Russian Federation the legal bodies who are the noncommercial organisations, can be created in the form of consumer co-operative societies, the public or religious organisations (associations) financed by the proprietor of establishments, charitable and other funds, and also in other forms, statutory.

Structure of the participants, having the right to create to (found) the organisation-legal forms of the noncommercial organisations provided by the civil legislation, it is defined in articles 116-123 of the Civil code of the Russian Federation, Federal act articles 6-12 «About the noncommercial organisations». Thus the Russian Federation as the proprietor of federal property, the noncommercial organisation can be created only in shape учреждения140.

According to articles 50 and 120 Civil codes of the Russian Federation establishment as the version of the noncommercial organisations possesses following discriminating signs: 1) it does not pursue the aim of I extraction of profit; 2) does not mete the received profit between

Participants; 3) can be created for realisation of administrative functions; 4) possesses property on the operational administration right; 5) answers under the obligations with money resources at its disposal, and at their insufficiency the subsidiary liability on its debts is born by the proprietor of property.

Now it is necessary to find out, whether there are for Bank of Russia specified signs.

138 See: Federal act item 3 «About the Central bank of the Russian Federation (Bank of Russia)».

I 139 See: item 50 of the Civil code of the Russian Federation; item 2 of the Federal act from January, 12th 1996г. № 7-FZ «About

The noncommercial organisations »(from amendment dop. For December, 28th 2002г.) H SZ the Russian Federation. 1996. № 3. Item 145; 2002. № 52 (a part 2). Item 5141.

139 See: item 120 of the Civil code of the Russian Federation.

According to positions of article 3 of the Federal act «About the Central bank of the Russian Federation» as already it was marked earlier, profit reception is not the purpose of activity of Bank of Russia.

The purposes of activity of Bank of Russia are connected with management monetary - credit and bank systems, increase of their efficiency and reliability and, certainly, include protection of the rights and legitimate interests of all participants of economic relations. Therefore they, undoubtedly, are aimed at achievement of public benefits and completely correspond to the purposes of the noncommercial organisations. According to the law, the noncommercial organisations can be created, in particular, for achievement of the administrative purposes, for protection of the rights and legitimate interests of citizens and the organisations, and also in other purposes directed on achievement public благ141.

The property of any legal person, on the basis of the Civil code of the Russian Federation, can be or in its property, or belong to it on the right of economic conducting, or be fixed to it on the operational administration right. Thus it is necessary to consider, that in the federal act it is directly established, that the proprietor of property of the Central bank is the Russian Federation. At the same time the property of Bank of Russia also cannot be recognised by belonging to it on the right of economic conducting. Jurisprudence quite obosnovanno admits, that the state or municipal unitary enterprise as a version commercial организаций142 can be the subject of law of economic conducting under the current legislation only. Therefore the federal property according to the law can belong to the Central bank of the Russian Federation, as the noncommercial organisation created in the form of establishment, only on the right operative управления143. According to the Civil code of the Russian Federation, the operational administration is understood as realisation by establishment of the right of possession, using and the order concerning the property fixed to it in

140 See: item 2 of item 2 of the Federal act «About the noncommercial organisations».

141 See: the Comment of the Civil code of the Russian Federation. A part the first./under the editorship of O.N.Sadikova. M., 1996. With. 96.

142 See: item 296 of the Civil code of the Russian Federation; item 1 of item 9 of the Federal act «About the noncommercial organisations».

Limits, statutory, according to the purposes of the activity, tasks of the proprietor and property appointment. The proprietor of the property fixed to establishment, has the right to withdraw property superfluous, not used or used not for the designated purpose and to dispose of it at own discretion [68].

Establishing, that ustavnyj the capital and other property of Bank of Russia are not its property, the Federal act «About the Central bank of the Russian Federation» at the same time has defined, that he owns, uses and disposes of the property fixed to it in the limits established by this law, namely: according to the purposes of the activity, rather and the powers fixed by the law. At the same time, unlike norms of the civil legislation, the specified law establishes some features of withdrawal of property of Bank of Russia. So, it is defined, that withdrawal and encumbrance by obligations of property of the Central bank of the Russian Federation without its consent are not supposed, if other directly is not provided by the federal act [69]. The given norm is the legal means providing observance of a statutory interdiction for granting by the Central bank of the Russian Federation of credits to the Government of the Russian Federation for financing of budgetary deficiency, not provided by the federal act about the federal budget [70], and also credits for financing of deficiencies of subjects of the Russian Federation, local budgets and budgets state

Off-budget funds [71]. Despite the specified requirement of the law, the Government of the Russian Federation has assigned to the Ministry of Finance of the Russian Federation of power to enter into on behalf of the Government of the Russian Federation of the agreement with the Central bank of the Russian Federation about extending credit on a covering of deficiency of the federal budget and other purposes [72]. Therefore the legislator takes the measures directed on bar of claim by lapse of time of compulsory withdrawal by enforcement authorities of property (money resources) of the Central bank of the Russian Federation.

Thus, provided by Federal act article 2 «About the Central bank of the Russian Federation» the special order of withdrawal of the property fixed to the Central bank of the Russian Federation, is objectively caused assigned to Bank of Russia by functions and does not contradict the operating civil legislation. If necessary withdrawal at the Central bank of the Russian Federation of a part of its property in the budget of Russia is carried out on the basis of federal acts accepted when due hereunder.

Some features are inherent in Bank of Russia and in a part, concerning orders the property. According to article 298 of the Civil code of the Russian Federation if to establishment is accorded to carry out a right activity bringing in incomes the incomes received from such activity, and the property got at the expense of these incomes arrive in the independent order of establishment and are considered in separate balance. The law establishes a duty of the Central bank of the Russian Federation to list in the federal budget of 50 % of actually received balance profit following the results of each year [73]. According to Federal act article 7 «About the federal budget for 2003» Bank profit

Russia is one of sources of formation of incomes of the federal budget for 2003.

C the creation moment the noncommercial organisation in the form of establishment has the right to get and carry out property rights, to perform duties, to be the claimant and the respondent in court [74]. Besides, the noncommercial organisation in the form of establishment can answer under the obligations subsidiarno with the proprietor of the property transferred to it at insufficiency of the money resources, at the disposal of establishment [75]. However with reference to the Central bank of the Russian Federation it is established, that the state does not answer under its obligations, and the Central bank of the Russian Federation - under state obligations if they have not taken up such obligations or other is not provided by federal acts [76 [77].

Thus, the carried out analysis of the current legislation allows to draw a conclusion, that the Central Bank of the Russian Federation mismatches to the full to all signs shown by the legislator to official bodies.

Other point of view on the organisation-legal form of Bank of Russia as legal person is stated L.G.Efimovoj believing, that the Bank of Russia is the state unitary enterprise based on the right of economic conducting. In its opinion, the Bank of Russia is the commercial organisation, is engaged in enterprise activity, receives from it the profit which part is transferred into the budget. However it is necessary to remember, that a main objective of any commercial organisation is profit reception, and it obviously contradicts the above-stated norm of the Federal act «About the Central bank of the Russian Federation».

According to articles 50 and 113 Civil codes of the Russian Federation the unitary enterprise, being the commercial organisation, possesses following discriminating signs: 1) its main objective

1 activity profit extraction is; 2) its property is in

The state or municipal property also is indivisible; 3) its controls is the head appointed the proprietor; 4) it answers under the obligations with all property belonging to it; 5) it does not bear responsibility under obligations of the proprietor of its property.

The unitary enterprises happen two kinds: based on the right of economic conducting and based on the operational administration right. The unitary enterprises of the first kind should possess the minimum

The authorised capital, have the right to create as the legal person others

I

, The unitary enterprises by transfer to it a part of the property;

The proprietor of property of the given enterprise does not answer under its obligations, except for statutory случаев154. The unitary enterprises based on the right of an operational administration, are inherently state, are deprived on the substance of practically all rights, cannot dispose of property without the consent of the proprietor, have not the right to dispose of the incomes, and also to be engaged independent economic деятельностью155.

Profit reception is not the purpose of activity of the Central Bank of the Russian Federation. However according to Federal act article 2

^ «About the Central Bank of the Russian Federation (Bank of Russia)» Bank of Russia

Carries out the expenses at the expense of own incomes. Thus, the Central Bank of the Russian Federation cannot release itself from the activity directed on extraction of profit completely.

The right to realisation of enterprise activity is not given the Central bank of the Russian Federation by acts. At the same time it is provided, that in the course of realisation of the functions of state regulation assigned to it in monetary - credit and bank spheres economic methods the Bank of Russia can

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і • 154 See: item 114 of the Civil code of the Russian Federation.

155 See: item 296,297 of the Civil code of the Russian Federation.

To receive own incomes [78] though in the legislation considerable restrictions of the rights of Bank of Russia on economic activities realisation in comparison with other legal bodies contain. In particular 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, its enterprises, establishments and the organisations, and also to be engaged in trading and industrial activity except for the cases provided by the federal act [79 [80].

But thus the Bank of Russia enters civil-law and other legal relations with other legal bodies and receives incomes not in communication by enterprise activity, and in the course of realisation of functions of management by it monetary and credit and bank systems. Moreover, the civil-law transactions made by Bank of Russia with the credit organisations (operations on the open market, refinancing, interest rates on operations of Bank of Russia, etc.) Are for it not means of reception of profit, and the basic tools and government methods in monetary and credit sphere. Actually received in the course of activity of the Central bank of the Russian Federation incomes (balance profit) following the results of a year are meted as follows: 50 % are used for replenishment of incomes of the federal budget, the others of 50 % fill up corresponding reserves and funds of Bank of Russia, and also are spent for the maintenance of its employees, property and so forth [81]. Expenses of Bank of Russia from the mentioned reserves and funds basically are connected with use of civil-law methods of the government (the economy, demanding considerable expenses of money resources). Thereby the financial basis of management is provided

Monetary and credit sphere without attraction of the state budgetary

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Means.

Hence, the Central bank of the Russian Federation in certain degree is engaged in commercial activity, but at the same time he cannot be characterised unequivocally as the commercial organisation. Above carried out analysis of the rights of Bank of Russia in relation to its property also does not allow to draw unequivocally a conclusion on the rights on which this property belongs to it as in this case it is impossible to speak in the pure state neither about the right of economic conducting, nor about the operational administration right. Besides, the Central Bank of the Russian Federation unlike the state enterprise carries out the activity independently, and public authorities have not the right to interfere with its operative activity. And at the same time, unlike the unitary enterprise based on the right of economic conducting, the Bank of Russia has not the right to take part in capitals of other legal bodies if it is not provided by the federal act ' 61.

Thus, the Central bank of the Russian Federation possesses only some signs of the unitary enterprise, as well as only some signs of official body, but is not neither the first, nor the second literally. Therefore, in our opinion, the most proved is G.A.Tosunjana and A.J.Vikulina's opinion which consider Bank of Russia, first, the noncommercial organisation, and secondly, the legal body of a special sort. Also support the point of view stated by S.A.Golubevym which considers thereupon deserves, that the Bank of Russia does not concern one of listed in the Civil code of the Russian Federation of organisation-legal forms and is the public legal body [82 [83] [84]. It is thought, would be to specify expediently legislatively the organisation-legal form of the Central bank of the Russian Federation as the current law does not establish it.

However only by the given problem of feature of a legal status of Bank of Russia are not settled, as it has the dual legal nature. C one party, it is the legal body, on the other hand, it is allocated by wide imperious powers on management of monetary - credit system of Russia, that is is the state body. It carries out government functions, but does not concern the legislator enforcement authorities.

Functions of the government carried out by it differ \from functions of other state bodies by that, first, it

Exercises administration concerning the subjects who are not in relation to it subordinates, secondly, it has no right to interfere with operative activity of the credit organisations, and, thirdly, in managerial process uses mainly measures of economic character.

Thus, the Bank of Russia certainly is body

The government, allocated with state-imperious powers in monetary and credit sphere and in sphere of bank activity, but thus the Bank of Russia is not enforcement authority. Simultaneously with it, unlike other state bodies, Bank of Russia at realisation of functions on state regulation

4

Bank system it is independent of bodies state власти163.

According to point 2 of article 75 of the Constitution of the Russian Federation protection and maintenance of stability of rouble is the basic function of Bank of Russia which it carries out irrespective of other bodies state власти164. Hence, the constitution of the Russian Federation carries Bank of Russia to public authorities. C other party, the Central Bank of the Russian Federation is not included in the system of public authorities provided by article 11 of the Constitution of the Russian Federation, it

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163 See: gejvandov JA.A.legal status of the Central bank of the Russian Federation. With. 78-79.

164 Constitution of the Russian Federation from December, 12th 1993г.//the Russian newspaper. 1993г. On December, 25th.

Also the list of the state enforcement authorities [85] is not included in established by the Decree of the President. At the same time the Bank of Russia carries out the functions assigned to it on behalf of the state, its activity has state-imperious, obligatory character. Hence, the Central bank of the Russian Federation carries out government functions in monetary and credit and bank spheres, therefore it cannot be out of system of state bodies. In spite of the fact that the bank of Russia is not included by the legislator in structure of enforcement authorities, on character of the activity it de facto carries out the executive authority on behalf of the state.

The given position is supported also by the Constitutional court of the Russian Federation which specifies, that powers of the Central bank of the Russian Federation, concerning bank regulation, supervision and the control over activity of the credit organisations and realisation of monetary - credit policy, by the legal nature concerns functions of public authorities [86]. Hence, the Bank of Russia concerns public authorities, obrazuemym owing to the Constitution of the Russian Federation, and exists according to norms of the Constitution of the Russian Federation. Thus it is necessary to notice, that the above-stated status of the Central bank of the Russian Federation admits both the Supreme Arbitration Court and other public authorities [87].

Summing up a considered problem, it is necessary to draw a conclusion, that the Bank of Russia represents the special public authority which is carrying out functions of the government by bank system. In the legal literature possibility of existence of the such state bodies which have been not carried by the legislator neither to regulatory authorities, nor to enforcement authorities, to courts of justice [88] is not excluded.

Thereupon, in our opinion, it is necessary to agree with the point of view on E.N.Pastushenko's given problem which believes, that the analysis of the constitutional bases of a legal status of Bank of Russia allows to draw a conclusion, that it is the independent public authority which is not entering in one of three branches of the power [89 [90] [91]. The similar position is stated also to M.V.Baglaem in which opinion, the Bank of Russia is the independent public authority independent within the competence neither from the President of the Russian Federation, nor from Federal assembly, from the Government of the Russian Federation, that is it has the unique status and does not concern one of three branches of the power 17 °. Thus, in our opinion, on the given question support and approval the point of view of G.A.Tosunjana and A.J.Vikulina resulted earlier in the present work also deserves, that the Bank of Russia is a federal public authority of a special sort. A.M.Asadov and E.N.Pastushenko also, supporting the given point of view, go in this question a little bit further, saying, that the Bank of Russia is a special public authority of the special competence.

At this S.A.Golubev adds, that the Central bank of the Russian Federation - the phenomenon unique as «the Central bank exists in the form of the Central bank» [92].

Thus it would be desirable to notice, that the Constitution of the Russian Federation and the bank legislation not only properly do not define a place of the Central Bank of the Russian Federation in system of public authorities and its status as legal person, but contain the norms obviously contradicting each other.

Practically all activity of Bank of Russia, and as state body and as legal person, has public character. At the same time the central bank of the Russian Federation is also the bank organisation, though and with the limited functions as have the right to carry out bank operations, statutory [93].

The analysis of article 75 of the Constitution of the Russian Federation leads to a conclusion, that in the cases specified in it the Bank of Russia is public authority of the special competence. However in all other cases it, according to G.A.Tosunjana, should be considered as control centre of bank system as system self-coping and self-regulated. He considers, that the analysis of the constitutional norms allows to come to conclusion, that the Central bank of the Russian Federation acts in two persons. C one party, as the federal public authority which is carrying out of a problem, connected with security of national currency, and with another - as original control centre of self-regulated and self-coping bank system; in this case the functions assigned to it by the law, the Central bank of the Russian Federation carries out to the dress or together with other public authorities [94].

The analysis of the legal nature of Bank of Russia allows to allocate three its cores of feature:

1) the Central bank of the Russian Federation has a dual legal status - it simultaneously is also public authority of the special competence, and the legal body participating on its own behalf in the civil circulation [95];

2) the Central bank of the Russian Federation as the public authority of the special competence accumulates practically all functions of state-imperious character in sphere of management of bank system. It also makes of the decision on registration of the credit organisations, and solves questions of licensing of activity of commercial banks, and establishes economic specifications, and carries out kontrolno-supervising functions concerning subjects of the bottom link of bank system.

3) the Bank of Russia besides is independent of the executive authority supreme bodies, and is accountable only to the legislature supreme body. Thus, the Central bank of the Russian Federation occupies

Unique position in system of public authorities which hardly can be compared to position not only German Federal Bank or Bank de France, but also in general with position of the central banks of economically developed countries.

Such difficult nature of the Central Bank of the Russian Federation, from the point of view of O.N.Gorbunovoj, is in certain degree of the independence of its activity justified by the objective requirement as «state and capital rapprochement always is undesirable» 176.

Along with a problem of definition of a legal status of Bank of Russia, in jurisprudence and practice the question on independence of Bank of Russia and its interaction with other governing bodies is not less debatable also. 1

The legal status of the Central bank of the Russian Federation in a financial system of the state deserves special attention. The theory of state-legal regulation says that when the policy of the central bank is closely connected with the state economic regulation the similar union is effective. Thus the main thing

176

The financial right: the Textbook / Under the editorship of O.N.Gorbunovoj. S.400-401.

There is a question on degree of dependence of the central bank from bodies state власти177.

According to the current legislation the Bank of Russia within the powers given to it by the Constitution of the Russian Federation and federal acts, is independent in the activity. Federal public authorities, public authorities of subjects of Federation and local governments have no right to interfere with activity of Bank of Russia on realisation of its legislatively fixed functions and powers. The bank of Russia has the right to address in court with the requirement about a recognition void certificates of public authorities and ' local governments of all levels directed on

Wrongful intervention in activity of the Central bank of the Russian Federation. At the same time the bank of Russia is accountable to the State Duma of Federal assembly of the Russian Federation that is expressed in the following:

1. Appointment to the post and clearing of a post the State Duma on representation of the President of the Russian Federation the Chairman of Bank of Russia;

2. Appointment to the post and clearing of a post the State Duma of members of Board of directors of Bank of Russia;

3. A direction and a response of representatives of the State Duma in I National bank board;

4. Granting by Bank of Russia on consideration of the State Duma of the annual report;

5. Carrying out of parliamentary hearings about activity of Bank of Russia with participation of its representatives;

6. Reports of the Chairman of Bank of Russia to the State Duma about Bank Rossii178 activity.

One of the important factors of independence of the Central bank are served also by the mechanism of concrete communications between the Central bank and

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177 See: Savin A.JU.decree. soch. With. 173-175.

178 See: Federal act item 5 «About the Central bank of the Russian Federation (Bank of Russia)».

The government. After all legislatively approved independence of the Central bank of enforcement authorities cannot serve as an indicator of its real independence and even argument in favour of that the Central bank becomes really independent.

The problem of interaction of the central bank with enforcement authorities dares in the foreign legislation differently: from practically full independence (Germany, the USA) to rather considerable subordination (the Great Britain, France). In Russia independence of the Central bank is today a discussion subject completely not casually. C one party, position of the State Bank of the USSR was not erased from memory completely dependent from party and machinery of state, and with another - the memoirs on confrontation of Bank of Russia with the Government of the Russian Federation under E.Gaydar's presidency, carrying out during the given period of time the Central bank of the Russian Federation of frankly antigovernmental policy are fresh. That activity of the central bank always should pass in frameworks of the general economic policy of the state which are carried out by the government of the country, hardly probable can raise the doubts. Therefore the tendency of the foreign legislator on an establishment of quite certain forms of submission of the central bank to the government and the Ministry of Finance is clear. But cannot raise the doubts and special position of the central bank in system of the state bodies, demanding working out of special forms of mutual relations of the central bank with enforcement authorities. The problem consists not in establishing, «who glavnee», and in providing the general policy of the Government of the Russian Federation and Bank of Russia, having in view of, that any current disagreements between them are natural and inevitable and that the mechanism which, C one party, would "keep" the Central bank of the Russian Federation within the limits of the governmental policy is necessary, and with another - would provide to it enough [96] high degree of freedom. For this reason today the law assigns a duty to the Central bank of the Russian Federation and the Government of Russia to inform each other on the prospective actions having nation-wide value, to co-ordinate carried out to the policy, to carry out regular consultations. Besides, the Bank of Russia participates in working out of economic policy of the Government of the Russian Federation. The chairman of the Central Bank of the Russian Federation participates in sessions of the Government of the Russian Federation, and the Minister of Finance of the Russian Federation and the Minister of economic development and trade of the Russian Federation participate in sessions of Board of directors of Bank of Russia with the right of a deliberative vote [97 [98] [99] [100]. With a view of perfection of a monetary and credit system of the Russian Federation at Bank of Russia the National bank board consisting of representatives of chambers of Federal assembly, the President of Russia and the Government of the Russian Federation is created.

The autonomy of the central bank means inherently, that, carrying out concrete actions in monetary and credit and bank spheres, the central bank should not meet with preliminary approval or adjust the actions with other state bodies. Important value in this case has the right of the central bank to give to other public authorities the limited information on the activity or not to give it in some cases absolutely. «Bank activity can be opened exactly so, how much it is possible from the professional point of view». In E.Torkanovskogo's fair opinion, in this sense independence

I OL

The central bank should be directly protected the law.

C N.A.Kufakovoj's points of view, real independence of Bank of Russia of the Government of the Russian Federation is rather relative, as

At realisation of mutual representation they are allocated with the deliberative vote right, and also carry out a number of the functions on the basis of close connections of mutual cooperation [101 [102].

However, in our opinion, the position stated on the given question of A.G.Bratko which considers is more proved, that the current legislation deduces Bank of Russia on level hardly probable not the most independent bank in the civilised world. It is thought, it would be expedient to develop application of the given norms in practice.

The financially-legal approach to the analysis of a legal status of the Central bank of the Russian Federation assumes, first of all, consideration of the questions connected with realisation by it of gosudarstvennovlastnyh of powers concerning the credit organisations, being the second link of bank system.

As the public authority, the Central bank of the Russian Federation regulates all sphere of bank activity - from exclusive monetary issue and execution of the budget before function of "bank of banks», as a financial settlements centre and the creditor in the last resort. Each of a wide range of functions of Bank of Russia to some extent is exposed now to criticism and demands improvement of the legislative basis. However, in our opinion, to the most difficult and capacious, exposed sharp criticism, function of regulation of activity of the credit organisations is. In this connection by the present moment has undoubtedly ripened necessity of perfection of a legal basis of mutual relations of Bank of Russia and the credit organisations.

The aspiration of independent banks operating on the basis of the private capital to maximum freedom from any restrictions of the activity not only is clear, but also is legitimate in this or that part which concerns daily operative activity of banks. However state regulation of their activity is the extremely necessary, as

The state is obliged to provide stability and reliability of functioning of system, and also protection of interests of the population. In this or that form bank regulation is carried out in all countries having organised bank system.

The state, with a view of maintenance of management with bank system, has defined in the Constitution of the Russian Federation first of all the special bodies, called to represent itself as subjects of management. According to article 75 of the Constitution of the Russian Federation one of such bodies is the Central bank of the Russian Federation. As other such body according to point of a part of 1 article 114 of the Constitution of the Russian Federation the Government of the Russian Federation would act. The analysis of the constitutional norms shows, that powers of the Central bank of the Russian Federation and the Government of the Russian Federation in the given sphere are formulated absolutely differently.

If article 114 of the Constitution of the Russian Federation establishes, that the Government of Russia provides carrying out in the Russian Federation the uniform financial, credit and monetary policy, that is defines the conferred powers as the general article 75 of the Constitution of the Russian Federation authorises Bank of Russia on performance of strictly certain functions - realisation of monetary issue, and also protection and maintenance of stability of rouble. It means, that the Government of Russia, realising the specified function, does not carry out the direct government bank system. Interpretation of article 75 of the Constitution of the Russian Federation leads to a conclusion that in it functions of the Central bank of the Russian Federation as public authority of the special competence are specified. Thus it is important to underline, that the Bank of Russia only at their realisation acts as federal public authority. In all other cases it that is not and should be considered as control centre of bank system as systems self-coping and self-regulated as in it are combined

I OZ

Both public, and private interests.

Overall objectives carried out by Bank of Russia on behalf of the state of bank regulation is maintenance of stability of bank system, maintenance of effective functioning of payment system, and also protection of interests of investors and creditors. Bank regulation assumes exclusive rights of the Central bank of the Russian Federation to establish obligatory for the credit organisations of a rule of carrying out of bank operations, conducting book keeping, drawing up and representation of the accounting and statistical reporting; to carry out registration and licence functions; to define requirements to level of preparation and qualification of heads, chief accountants and members of the collegiate bodies of management of the credit organisations; to establish for the credit organisations obligatory specifications of their activity; to carry out currency regulation in territory of the Russian Federation; to publish normative acts within the competence.

The list of the problems solved by Bank of Russia according to the operating bank legislation, raises serious doubts; anyway such combination of functions by which it is allocated, is not present at one bank structure in the world. Anywhere licensing and decision-making on registration of commercial banks, the control and supervision of their activity, settlement-cash service, reserve functions, and in addition also subordinate legislation normotvorchestvo do not concentrate in one hands. Some scientists consider them even by definition несовместимыми187. And already full nonsense is the combination of all of it to activity of the Central bank of the Russian Federation as the managing subject who is carrying out bank operations. Bolshy monopolism to difficultly itself to present.

In this respect the top level of bank system of Russia essentially differs from top level of bank system of the countries with

186 See: Tosunjan G. A. The Banking and the bank legislation in Russia: experience, problems, prospects. With. 218-220.

187 See: In the same place.

The developed market economy. It is enough to notice, that this level is presented to Russia only by one subject - Bank of Russia while in other countries at this level a number of independent subjects operates.

The structure of top level of existing bank system of Russia and its function have developed in essence in conditions is command - a management system of management of a national economy, including bank sphere, and since then basically have a little changed. As a result given link of bank system of our country requires for a long time serious transformations.

According to some scientists, there is a number of the factors connected with a condition and activity of Bank of Russia, under which influence functioning of all bank system and furthermore efficiency of process of its self-management and self-control essentially worsens. As the most serious factor in the literature the full monopolism of the Central bank of the Russian Federation in sphere of management of bank system is underlined. Therefore the analysis of negative consequences, and also the reasons and conditions, its generating, and search of ways of its overcoming is rather actual problem at the given stage of development of bank system.

The monopoly position of Bank of Russia is objectively caused by that, being the unique subject of top level of bank system, it independently carries out all problems and functions which come under to performance at this level of system. It simultaneously carries out both bank regulation, and bank supervision, both subordinate legislation normotvorchestvo, and settlement-cash service of the credit organisations, and application to them of sanctions. All these functions, in our opinion, are incompatible as the given situation allows the Central Bank of the Russian Federation to dictate any conditions to the credit organisations, demanding their indisputable and unconditional performance.

In this connection it is necessary to agree, that «the monopolism in any field of activity leads sooner or later to stagnation. Absence of a competition always deprives of stimulus to perfection. In sphere of management the monopolism is a fertile field for absence of control and subjectivity, possibility of acceptance of any decision irrespective of, it is proved or not, correctly or wrongly.

The monopolism of controls is especially dangerous to system when the legal base of its activity is defective, underfulfilled, has serious blanks. That now is the condition of a legal basis of functioning of credit-bank system, in particular the Central bank of the Russian Federation ».

Thus operating bank legislation is formulated in most cases thus, at which probably dual interpretation of some its norms; a number of norms is limited only to declaring of certain rules, not regulating the mechanism of their realisation. The same it is possible to tell and about settlement in the legislation of limits of the competence of Bank of Russia. They are outlined only in the most general form that gives to the Central bank of the Russian Federation possibility de facto to establish their most. Such position, in our opinion, dangerously, especially in the conditions of formation in the market economy country as during the given period the most convenient conditions for uncontrolled activity of Bank of Russia are created, amplifies an unprecedented monopoly position in all financial system of the country.

«Moreover, in developed conditions which are similar to legislative vacuum, normotvorchestvo the Central Bank starts to find as a matter of fact value of legislative activity. Its normative acts and instructions cease to be defined by the current legislation and gradually substitute it» [103 [104] [105].

The list of the problems put by the legislator before Bank of Russia, raises serious doubts. In hands of the Central bank Russian

Federations the considerable quantity of various functions is concentrated too. Thus, exclusive character of management of bank system the Central bank of the Russian Federation clearly appears. There is a danger, that centralisation of all completeness of the power at one institute will inevitably lead to subjectivity of its actions in relation to regulation of bank activity. As a result of such construction of bank system of Russia the credit organisations and Bank of Russia appear as though in the forced opposition, that, undoubtedly, does not raise trust to all system. Though at appointment to posts in the Central bank of the Russian Federation also are used democratic принципы191, but its monopoly position as body of bank regulation and bank supervision, thus does not change.

In connection with the above-stated it is possible to assume, that the possible way of the further perfection of bank system of Russia lays in division of functions of management of bank system between various state institutes. Considering positive experience of the countries with the developed market economy, the top level of bank system of Russia, in our opinion, in the long term is necessary for reforming, having created at this level some specialised state bodies between which functions of Bank of Russia would be divided. However thus it would be desirable to notice, that in the given question, undoubtedly, J.A.gejvandova's opinion which pays attention that management of bank system should be carried out exclusively state органами192 deserves support.

The analysis of essence of state regulation of bank activity carried out in the present chapter allows to draw a conclusion, that such regulation as already it was marked earlier, is carried out by Bank of Russia in various directions, special interest among which, the organisation of interstate clearing settlements, as causes

191 See: item 12, 14, 15 Federal acts «About the Central bank of the Russian Federation (Bank of Russia)».

192 See: gejvandov JA.A.state regulation of bank activity in the Russian Federation (the Theoretical and organisation-legal analysis). With. 81-84.

The direct subject of bank activity constitutes maintenance of a monetary turn in the country. In this connection regulation on behalf of the state of system of calculations is the major component of all mechanism of state regulation of bank activity, as an indispensable condition of appropriate functioning of all bank system. Without an establishment of rules of carrying out of clearing settlements the Bank of Russia has no real possibility to carry out state regulation of bank activity to the full, and also to provide stability of national currency.

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A source: TIMAKOVA Tatyana Gennadevna. FINANCIALLY-LEGAL PROBLEMS of REGULATION by the CENTRAL BANK of the RUSSIAN FEDERATION of INTERSTATE CLEARING SETTLEMENTS. The dissertation on competition of a scientific degree of the master of laws. Saratov 2003. 2003

More on topic § 3. Features of a legal status of Bank of Russia as body of state regulation of bank activity.:

  1. § 2. The organisation of clearing settlements in system of functions of the Central bank of the Russian Federation as body of state regulation of bank activity and its legal bases.
  2. § 2. Features of legal regulation of realisation by Bank of Russia of supervision of activity of the credit organisations
  3. § 1. Concept and a role of bank supervision of a legal mechanism of state regulation of bank activity.
  4. § 1. Powers of Bank of Russia on the state registration The credit organisations and to licensing of bank activity
  5. § 2. Specificity of administrative system in state regulation of bank activity. Kinds of state regulation of bank activity.
  6. § 2. Features of the public status of the Central bank of the Russian Federation and its role in financial activity of the state
  7. § 2. Development of legal regulation of activity of the authorised banks of the Government of Moscow in the conditions of definition of a legal status of joint-stock company «the Moscow municipal bank - Bank of Moscow» (1995 - the end of 1999).
  8. Chapter 2. Features of legal regulation of activity of Bank of Russia under the control over creation of the credit organisations and supervision of their activity
  9. a legal regulation of the status of the Central bank of the Russian Federation as body of currency regulation and exchange control
  10. § 1 Concepts and the legal nature of state regulation of bank activity.
  11. § 1. Standard regulation in a legal mechanism of state regulation of bank activity.
  12. § 2. Features publicly-legal status Central bank of the Russian Federation and its role in state financing activities
  13. the Head І. The General characteristic of a legal status of the Central bank of the Russian Federation (Bank of Russia)
  14. § 2 Legal means individually-legalre_uli - rovanija in system of state regulation of bank activity.
  15. features of a legal regime of the information of the limited access in bank activity on an example of the international bank group in the conditions of counteraction to washing up of the incomes received criminal by, and terrorism financing
  16. the Chapter IV. The basic directions of development of the status of Bank of Russia as public authority in monetary and credit And bank spheres