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§ 2. Individually - the legal certificate in bank regulation


Activity on right application is expressed in concrete legal forms which “from this point of view legal regulation act as a result, a culmination of the permission of a concrete situation. Result of the decision of business - the individual certificate, it is state - imperious command, the instruction invested with the documentary form, in the certificate form - the document...” [120]
The right theory has developed signs of the individually-legal certificate which are to the full applicable and to the bank regulation carrying as it was shown above, state - imperious character.
“The certificate of application of the right is, first, the decision on concrete business of official competent body which the state has authorised on right realisation in certain spheres of public relations; secondly, the certificate of application of the right contains state-imperious command, obligatory for observance and execution by all it is addressed a clod and provided with force of the state; in - the third, the certificate of application of the right has the certain form established by the law; in - the fourth, the certificate of application of the right is directed on individual regulation of public relations. In it are strictly individualised the subjective rights and legal duties (are personified).” [121] given signs are fair also for pravoprimenitelnyh certificates in bank regulation.
As marks S.S.Alekseev, “in individually-legal regulation state-imperious command can carry out double legal function: first, its legal value can consist in legal ascertaining, i.e. in a recognition of existence of the certain facts, their legitimacy or illegitimacy, including in a recognition or non-recognition of the certain right for the given person or, on the contrary, in ascertaining on the given event of the fact of an offence” [122]. As a typical example of the given kind of the certificate in bank regulation licensing acts (a recognition or right granting to carry out bank activity or the instruction about elimination of offences (offence ascertaining).
“In the second, the decision of legal business, besides, can include new legal obremenenie - to impose punishment, to establish a duty
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To make certain actions when due hereunder ”etc. In bank regulation, according to Law item 75“ About Central bank of the Russian Federation ”character of data obremeneny can be following - imposing of duties on object of regulation on penalty payment, realisation of actions for financial improvement, replacement of heads, reorganisation of the credit organisation.
Taking into account the above-stated, the certificate of application of the right, or individually - in bank regulation it is possible to define the legal certificate as follows is an official decision of Bank of Russia (its structural divisions) on the concrete business, the containing imperious command expressed in the certain form and directed on individually-legal regulation of activity of the concrete credit organisations that is shown in an individualization of the rights and duties for object of regulation with draught on funds individually - legal regulation.
The given certificates grow out of activity of Bank of Russia in sphere of bank regulation and supervision.
The individually-legal certificates having state-imperious character, are provided with special means of compulsion which are given Bank of Russia as to the body of bank regulation realising public interest of the state in a banking system, by the law.
The bank of Russia has the right to collect (in a judicial order, and according to Law item 38 “About banks and bank activity” and in bezaktseptnom) penalties from the credit organisations, to limit (to enter an interdiction) circle of made operations, using licensing function to give right or to deprive of the right of fulfilment of bank transactions. Thus, it is possible to ascertain, that the state confers to Bank of Russia sufficient powers for realisation of individually-legal certificates concerning the credit organisations with use as the means which are available available at the Bank of Russia, and realisation machinery of government (judicial system).
Individually-legal certificates can be classified on following bases:
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On the subjects who are carrying out application of the right: Certificates of Bank of Russia, Territorial establishments of Bank of Russia: Central administrative boards and National banks of subjects of the Russian Federation, Structural divisions of Bank of Russia (Management of inspection of banks). Further, in case in Russia the system of bank regulation on the basis of several bodies will be created, certificates of Bank of Russia and other bodies of regulation will be allocated accordingly. Branches and the OPERA of Bank of Russia, carrying out direct current supervision of activity of the concrete credit organisations.
Under the maintenance: Certificates - permissions - for example, the licence for realisation of bank transactions. The licence as the special permission, a category, ha -
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rakterizujushchaja the licence from the point of view of the maintenance. Certificates - coordination - coordination establishing the legal fact with Bank of Russia (other regulating bodies) certain actions, for example modification of founding documents, appointments to posts of heads and the chief accountant of the credit organisation of certain persons, legitimacy of increase in an authorised capital etc. Ordering certificates - the certificates containing the instructions of Bank of Russia (accepted, as a rule, as supervision or on the basis of its results) about fulfilment of certain actions with a view of elimination of lacks of activity of the credit organisations, prevention of fulfilment of offences further. Ordering certificates also can carry reguljativnyj character and comprise the measures of influence provided by item 75 of the Law “About Central bank of the Russian Federation (Bank of Russia)”, sanctions in the form of the requirement about penalty payment, about restriction on fulfilment of separate bank transactions (restriction of a circle of made operations), interdictions. Pravoprekrashchajushchie certificates - an example of the given kind of certificates is the order of Bank of Russia on licence withdrawal on realisation of bank transactions at the credit organisation.
In the expression form it is possible to allocate: Certificates - documents - the decision of Bank of Russia made in written form with observance of necessary requisites, for example, the instruction, the form and which requisites are established by the Instruction of the Central Bank of the Russian Federation № 59 “About application to the credit organisations of measures of influence for infringement prudentsialnyh norms of activity”; Certificates - actions which can be divided on active and konkljudentnye. Certificates-actions in bank regulation are applied only in the cases established by the law or statutory acts of Bank of Russia.
Example of active actions of Bank of Russia is licensing (which in itself is the certificate-permission) for realisation of bank transactions of the credit organisation according to Law item 13 “About banks and bank activity”.
Among the active actions having character pravoprimenenija, it is possible to allocate such specific form inherent in bank regulation, as oral certificates of individually-legal influence. An example of such oral certificates-actions is the notice on the admitted infringements of the credit organisation. According to item 10 of the Instruction of Bank of Russia № 59 “About application to the credit organisations of measures of influence for infringement prudentsialnyh norms of activity” the precautionary measure of influence in the form of finishing to data of controls of the credit organisation on lacks of its activity and concern of supervising body a state of affairs in the credit organisation can be brought to the notice the credit organisation during a business meeting. The result of a meeting is made out by the report, which in itself is not the form of application of a measure of influence, and establishes the fact of the notice of directing bodies of the credit organisation about application to the credit organisation of a precautionary measure of influence.
Konkljudentnye certificates - actions, as a rule, are expressed in the form of inactivity, applied in the cases established by the law.
For example, according to Law item 18 “About banks and bank activity” the Bank of Russia gives out preliminary permissions to increase in an authorised capital at the expense of means of non-residents. In case the bank of Russia has not informed in two-month term on the accepted decision the specified operation it is considered resolved. The same order is established by Law article 60 “About Central bank of the Russian Federation (Bank of Russia)”: acquisition by one person (group of the connected persons) more than 20 percent of shares (actions) of the credit organisation demands the preliminary consent of Bank of Russia. In case the bank of Russia within 30 days from the moment of reception of the petition has not informed the credit organisation on the accepted decision the transaction is considered resolved.
On legal value certificates of Bank of Russia can be classified on the cores and vospomogatelnye which are accepted for realisation of the basic certificate.
In some cases, for realisation of the certain certificate of state regulation set of the individually-legal certificates realising the given certificate is required.
For example, the instruction about penalty imposing on the credit organisation is the basic individually-legal certificate establishing concerning the concrete credit organisation a duty on payment of the penalty for fulfilment of a bank offence. But exaction of a penalty under compulsion, except for the penalty for infringement of an order of formation of fund of obligatory reservation (Law item 38 “About banks and bank activity”), is possible only in a judicial order. Proceeding from it, vospomogatelnym the certificate accepted with a view of realisation of the basic certificate, the decision of arbitration court on collecting from the credit organisation of the sum of the penalty is.
Licensing of the credit organisation represents difficult set of actions of regulating bodies: on the basis of the petition of territorial establishment of Bank of Russia and by results of consideration of the presented documents the Central bank of the Russian Federation makes the decision on the state registration of the credit organisation and licensing for realisation of bank transactions. The state registration of the credit organisation in itself is the legal fact made out by the certificate on the state registration and attracting certain consequences: a duty for founders on authorised capital formation, a duty for corresponding territorial establishment of Bank of Russia to open the registered
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The credit organisation the correspondent account to grant a copy of certificates about state registratsji and founding documents. After reception from territorial establishment of Bank of Russia of the conclusion about legitimacy of payment of 100 % of an authorised capital the Bank of Russia makes the decision on licensing of the credit organisation which is made out by the internal order and licence registration as the official document expressed in entering into the form of the licence of all necessary requisites, and directs to territorial establishment of Bank of Russia 2 copies of the licence. The legal certificate finishing given procedure is delivery to the Chairman of Council of the credit organisation of a copy of the licence.
In summary, it is necessary to stop on the form of individually-legal certificates of state regulation of bank activity. As it was specified above, individually-legal certificates are taken out in oral (only precautionary measures) or the written form that is characteristic for overwhelming majority of certificates.
According to item 16 of the Instruction of Bank of Russia № 59 from 31.03.97 measures of influence applied to the credit organisation, as a rule, are made out in the form of the instruction.
The appendix № 1 to the above-stated Instruction defines the instruction as the document directed to the credit organisation in which supervising body referring to concrete positions of the banking legislation, statutory acts of Bank of Russia ascertains the revealed infringements (lacks) of activity of the credit organisation, specifies term of their elimination, and also the concrete forced measures of influence applied to the credit organisation. The instruction with a view of stabilisation of activity of the credit organisation can contain following requirements - about change of structure of assets; about reduction to established by Bank of Russia to level of economic specifications, rest funds, level of a currency position; about settlement of commitment before creditors and investors; about replacement of heads; about reorganisation of the credit organisation; other requirements shown to the credit organisation regarding performance of the banking legislation. The instruction should contain term of their performance. The instruction can include the requirement about transfer of the penalty with instructions of concrete term, and also the instruction makes out introduction of restrictions on realisation of separate bank transactions and an interdiction for opening of branches.
Acting administration introduction on management of the credit organisation and licence withdrawal on realisation of bank transactions are made out by the order. Unlike the instruction, the Order of Bank of Russia is published only by Bank of Russia and subscribes the Chairman of Central bank of the Russian Federation or its assistants. The order of Bank of Russia is not the confidential information and is published in the press.
Difference of the order from the instruction consists that the order is the public document published in the press, contains not requirements on elimination of concrete infringements, and enters the strict measures of influence - appointment of an acting administration and licence withdrawal from the credit organisation.
The above-stated instruction defines necessary requisites of the given documents.
The individually-legal certificates which are making out the coordination of certain actions of the credit organisation or the permission to fulfilment of certain operations, are taken out in the form of the circular of Bank of Russia, and in certain cases and other documents.
According to points 9, 10 Positions of Central bank of the Russian Federation № 437 from April, 23rd, 1997 [123] permission to participation of non-residents in an authorised capital of the credit organisation with foreign investments are the circular of Bank of Russia, and at creation of the affiliated credit organisation - the Letter of intent signed by founders of the credit organisation and Bank of Russia.
The permission to realisation of the unitary bank transactions which have been not provided by the licence for realisation of bank transactions, available for the concrete credit organisation, are made out by the special permission (licence) to fulfilment of the concrete transaction (operation). The given position also concerns transactions (operations) in the field of exchange regulation and the control, connected with capital flow.
There are certificates for which the certain form is not established. For example, according to point 6.2. Positions of Bank of Russia № 37 from 30.03.96 collecting from the credit organisation of the sum nedovznosa and the penalty for infringement of an order of reservation are made on the basis of written orders (the form any), signed by the head of territorial establishment of Bank of Russia or the representative on it the executive of territorial establishment (the settlement-cash centre) Bank of Russia.
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A source: POPOV ILJA SERGEEVICH. Legal mechanism of state regulation of bank activity. The DISSERTATION on competition of a scientific degree of the candidate of jurisprudence. Moscow,. 2000

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