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§ 5. Legal acts of the Central bank of the Russian Federation as sources of the financial right

Legal (formal) sources represent the form of an establishment and expression of rules of law [371], «that unique« the tank »in which legal rules» [372] sojourn.

In the financially-legal educational literature as sources of the financial right understand «laws and other normative acts representative and executive powers of the government, local government, controls» [373 [374], «legal acts representative and government executive powers (federal and subjects of Federation) and local government in which norms of the financial right» contain.

Norms of the financial right with reference to bank activity regulate relations of the credit organisations with budgetary system on payment of taxes and tax collections, relations between Bank of Russia and the credit organisations in the field of realisation of bank regulation by Bank of Russia and supervision, in particular at an establishment Bank of Russia obligatory normati - bob with which help stability of credit system of Russia is supported, and also at application of financial sanctions for infringements bankovsko -

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go legislations.

Sources of the financial right are laws and other normative acts representative and executive powers of the government, local government. In aggregate all these certificates constitute the financial legislation [375 [376].

In sphere of financial activity of the Russian Federation subordinate legislation legal acts are of great importance, as establish the mechanism of realisation of the federal financial legislation, operatively regulate financial relations, define legal reference points and enter is standard-legal bases for the edition of other legal acts in financial sphere.

Important role in regulation of financial activity of the state the subordinate legislation of the Central bank of the Russian Federation as occupies sources of the financial right [377]. They establish legal bases of the bank credit, monetary circulation and calculations, bank regulation and bank supervision, currency regulation and exchange control, service of accounts of budgets. Consideration of a place of legal acts of Bank of Russia as sources of the financial right in system of legal acts of the Russian Federation, legal influence of federal acts, Decrees of the President of the Russian Federation, the governmental orders of the Russian Federation on law-making of Bank of Russia is carried out earlier. Classification of normative acts of Bank of Russia, variants of ordering of normative acts of Bank of Russia as sources of the financial right will be considered in the following chapter.

According to development of methods of financially-legal regulation new forms of joint decisions of financially-credit bodies (the Ministry of Finance of the Russian Federation, the Central bank of the Russian Federation, Federal customs service, etc.), in particular agreements between them are used.

In the Russian legal science such sources, as legal custom, legal precedent, the contract with the standard maintenance and the regulatory legal act [378 [379] [380] are allocated, as a rule. Thus scientists notice, that «absolutely certain external form (type of sources of law)» should be peculiar to norms of some branches of law. In this connection we will consider legal acts of the Central bank of the Russian Federation as sources of the financial right.

In a science disputes on a place of the norms regulating sphere of bank activity, in system of the Russian right proceed.

The point of view about independence of the bank right as is stated branch of the Russian right with the subject and a legal regulation method (G.A.Tosunjan [381], O.M.Olejnik [382]). In opinion And. G.Bratko, «the bank right - branch of the Russian right which consists of the rules of law regulating the organisation of the bank

Systems, monetary circulation, a legal status and bank operations of the credit organisations »[383]. But it is not indisputable.

Consideration of the bank right as podotrasli the financial right (N.I.Himicheva, O.N.Gorbunova, G.V.Petrov) [384] is not excluded. If earlier scientific speciality 12.00.12. The scientific speciality 12.00.14 included both the financial right, and the bank right, in modern conditions. Provides only the administrative and financial right.

In theory of law it is considered, that the code characterises itself, as a rule, independent branch of law (for example, the Civil code of the Russian Federation - civil law, the Criminal code of the Russian Federation - criminal law, the Civil code of practice of the Russian Federation - the civil law of procedure, the Code of Criminal Procedure of the Russian Federation - the criminal procedure). The given rule is traditional and it is known still to the pre-revolutionary right of Russia.

The Codes which have appeared in recent time represent other direction of codification of the legislation and make out podotrasli the rights (for example, the Tax Code of the Russian Federation - the fiscal law as podotrasl the financial right; the Budgetary code of the Russian Federation - the budgetary law as podotrasl the financial right; Ground, Wood, Water codes

- podotrasli the nature protection right). But the uniform subject is inherent in these codes and there is a prevailing method of legal regulation that it is impossible to tell concerning the bank right. Whether is the bank right independent branch of law?

According to supporters of independence of the bank right, for it the imperative method of regulation constructed on a principle of the power and submission is characteristic. «Bank laws provide, that rules of bank operations, book keeping and the reporting are established by Bank of Russia. It makes the decision on the state registration of the credit organisation, establishes economic specifications and other requirements» [385]. Two principal views of relations enter Into a subject of legal regulation of the bank right: 1) relations concerning formation of bank system; 2) relations between Bank of Russia and the credit organisations concerning carrying out of bank operations.

On the available point of view the bank legislation [386] is the complex branch of the bank legislation combining the public and private-legal beginnings in which to define what of them are predominating is problematic. The public relations settled by rules of law developing between Bank of Russia and the credit organisations at realisation by it of bank regulation and supervision (public relations), undoubtedly, are important for stability of bank system, but the public relations settled by rules of law developing between the credit organisation and its clients - legal and physical persons - concerning rendering of bank services (private-law relations) are not less significant.

The bank legislation characterises also a dual method of legal regulation: public (an imperative method, a method of imperious instructions), present at relations between Bank of Russia and the credit organisations in the field of bank regulation and supervision; private-legal (optional, a method of equality of the parties) a method used at the conclusion by the credit organisations and clients - legal and physical persons - contracts of the bank contribution, the bank account, financing under a concession of the monetary requirement, the credit contract and other civil-law contracts on rendering of bank services.

In the conditions of a duality of a subject and a method of the bank legislation more logical and proved the modern model of the bank legislation is represented: the federal acts reflecting two-level character of market economy, answering to the market economic relations, considering noted integrated approach of the bank right. So, the Federal act «About the Central bank of the Russian Federation (Bank of Russia) reflects the public beginnings of the bank legislation, the Federal act« About banks and bank activity »- in bolshej degrees the private-legal beginnings, and federal acts« About an inconsistency (bankruptcy) of the credit organisations »successfully fix both these beginnings with reference to a regulation question.

However the argument, based it is exclusive on a regulation subject can to affect negatively understanding of unity and integrity of the financial right [387]. We can speak about existence of complex branch of the legislation. The category of the adjacent, "boundary", interbranch, complex legal institution has strongly become stronger in jurisprudence. In this connection complex legal educations should be called interbranch (complex) legal institutions [388]. Even supporters of allocation of complex branches of law recognise, that on the legal properties interbranch institutes are formations which «entirely correspond to features of complex branches» [389]. It does not exclude, and on the contrary assumes the branches of jurisprudence studying difficult interbranch institutes and the relations, and also branches of the legislation corresponding to them. The complex branch of the legislation consists of complex (interbranch) legal institutions or in the systematised kind contains difficult complex institute [390]. Complex use of norms of various branches of law does not create new branch of law as at complex legal regulation of public relations there is no transformation of norms of one kind into another or any them is

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nija.

Today it is possible to name complex branch of the legislation only such legislative file which as a whole, not possessing homogeneous subject unity (as regulates mainly different branch relations), nevertheless comprises a certain subject kernel. The subject kernel of complex branch of the legislation is constituted on the one hand by the public relations settled by special legislative norms which essentially cannot be identified as the norms belonging to main (basic) branches. This group of norms is absent in main branches and contains only in the given complex branch.

In the literature there is a point of view that among complex branches of the legislation branches of two types [391 [392] can be allocated:

- The in detail-limited branches of the legislation (the branches regulating the relations, developing in connection with the realisation, a certain kind of activity which constitute corresponding sphere of management. These branches of the legislation arise in connection with presence of objective necessity of special legislative regulation of the corresponding relations, resulting of specific character of this or that kind of activity or economy sector (the bank right, the insurance right, the agricultural right, etc.);

- The is functional-limited branches of the legislation (the branches regulating the relations, arising concerning realisation separate (usually very important, having obshchesotsialnyj character) obshchestvennogosudarstvennyh the functions, making direct impact on quality and a functioning condition of all or overwhelming majority of subjects of law (competition protection, ecological safety, country defence, procurator's supervision).

According to this classification the bank legislation is the in detail-limited complex branch of the legislation.

Now the special bank legislation is complex branch of the legislation and in this quality represents specific structural formation in system of the Russian legislation which uses for complex legal regulation of all aspects of activity of bank system of norm of various branches of law. Occurrence and development of bank system has led to necessity of creation of a legal field of its activity. The bank legislation represents one of the major tools of state regulation of bank system. The bank legislation is traditional podotraslju the financial legislation regarding regulation of calculations, crediting of commercial banks by Bank of Russia, currency regulation and exchange control, maintenance of stability of national currency, conducting accounts of federal exchequer.

The bank legislation represents set konstitutsionno-legal, civil-law, is administrative-legal, financially-legal, criminally-rules of law. Research of questions of the conceptual device of the bank legislation is actual from positions of definition of legitimacy and validity of the edition Bank of Russia pravoprimenitelnyh certificates as body of bank supervision as according to Federal act article 56 «About the Central bank of the Russian Federation (Bank of Russia)» Bank of Russia carries out constant surveillance over observance by the credit organisations and bank groups bank [393 [394]

Legislations, normative acts of Bank of Russia, the obligatory specifications established by them.

1. The basic source of the bank legislation are standard legal acts. Article 2 of the Law about banks and bank activity establishes, that legal regulation of bank activity is carried out by the Constitution of the Russian Federation, the present Federal act, the Federal act «About the Central bank of the Russian Federation (Bank of Russia)», other federal acts.

As general laws with reference to banks it is necessary to name, first of all: the Civil code of the Russian Federation [395], the Criminal code of the Russian Federation [396], the Customs code of the Russian Federation [397], the Federal act from December, 26th, 1995 № 208-FZ «On joint-stock companies» [398] and other laws which to some extent regulate a procedure of bank activity by the credit organisations and Bank of Russia.

The bank legislation in narrow sense of this concept (i.e. Acts) it is subdivided on special and the general [399].

The general bank legislation includes the norms containing in the Civil code of the Russian Federation, the Tax code of the Russian Federation, the Budgetary code of the Russian Federation, the Criminal code of the Russian Federation, the Customs code of the Russian Federation, the Federal act «On currency regulation and exchange control», the Federal act «About a securities market» and in other laws which to some extent regulate a procedure of bank activity by the credit organisations and Bank of Russia.

The named laws should be applied to banks and bank activity if special bank norms do not establish any other rules and restrictions.

As to the legislation, containing rules of administrative law here it is necessary to specify in the Code of the Russian Federation about administrative violations which has fixed new special structure of administrative violation - infringement of the legislation on banks and bank activity and for the first time has established administrative responsibility in bank sphere as banks, and its clients, at level kodifitsirovannogo the certificate, along with responsibility in other fields of activity.

As special bank laws Federal acts «About banks and bank activity», «About the Central bank of the Russian Federation (Bank of Russia)», «About an inconsistency (bankruptcy) of the credit organisations» act, etc.

In the specified normative acts norms about an order of creation, registration, licensing, liquidation the credit organisations and a role of Bank of Russia in regulation of the given relations, control and supervision of activity of the credit organisations and their clients contain. Specificity of the special bank legislation consists that in federal acts the extensive competence of Bank of Russia as public authority is fixed, however the establishment of a procedure of its powers, ways of their realisation and responsibility of under control subjects also is made by Bank of Russia.

C the purpose of strengthening of the rights of investors and creditors of banks [400], perfection of tools of bank supervision accepts the Federal act «About insurance of contributions of physical persons in banks of the Russian Federation» from December, 23rd, 2003 № 177-FZ [401]. Rigid requirements for banks on occurrence in system of insurance of contributions are not excessive, do not testify to superfluous intervention of the state in bank business [402 [403] [404]. On the contrary, the state confirms necessity of social protection of investors at an inconsistency (bankruptcy) of bank, that, certainly, has positive influence on stability of all bank system. Acceptance of the given law has given an impulse to the further development of bank regulation. For example, Position of Bank of Russia from January, 16th, 2004 was accepted № 248-P «About an order of consideration by Bank of Russia of the petition of bank about removal of the conclusion by Bank of Russia about conformity of bank to requirements to participation in system of insurance of contributions» which has standard issued the beginning of transition of bank regulation on substantial bases.

For example, the Federal act from 29.07.2004 № 96-FZ «About payments of Bank of Russia under contributions of physical persons to the banks recognised as bankrupts which are not participating in system of compulsory insurance of contributions of physical persons in banks of the Russian Federation» became the answer on developed in the summer of 2004 a situation in bank sector. Formation of system of compulsory insurance of contributions of physical persons in banks became the Immediate cause of an adoption of law: with one of results of its introduction should begin to involve the debaring of some banks population means in contributions. C the purpose of removal of possible intensity and trust strengthening to bank system as a whole it has been decided to extend to investors of the banks which have not entered into system of insurance, similar guarantees [405]. Acceptance of the specified Federal act has demanded from Bank of Russia of working out of set of normative acts, in which number Instructions of Bank of Russia from November, 17th, 2004

№ 1517 «About realisation of payments of Bank of Russia under contributions of physical persons to the banks recognised as bankrupts which are not participating in system of compulsory insurance of contributions of physical persons in banks of the Russian Federation, and about an order of interaction of banks-agents with Bank of Russia» [406], Instructions of Bank of Russia from November, 17th, 2004 № 1516 «About an order of competitive selection of banks - of agents for realisation of payments of Bank of Russia under contributions of physical persons» [407].

On December, 30th, 2004 the Federal act № 218-FZ «About credit histories» [408 [409] is accepted. The idea of credit bureaus has ripened for a long time. After eight years of discussions the Law, at last, has been accepted. A bureau of credit histories

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Represent an element of a bank infrastructure. Presence of system of credit histories gives to creditors (creditors) a cheap and effective way of gathering and use of the information on borrowers that does more accessible to the creditor the information on the borrower, and its expenses on finding-out of a financial condition of the borrower decrease [410]. The Normative acts prepared by Bank of Russia within the limits of realisation of the Federal act «About credit histories» are specified in the Information of Bank of Russia from September, 29th, 2005 [411].

One more version of the legal acts regulating some parties of bank activity, - Decrees of the President of the Russian Federation and the Governmental order of the Russian Federation.

The considerable share in the bank legislation is occupied with normative acts, the explanations of other enforcement authorities regulating adjacent relations, arising at realisation of bank activity.

The Ministry of Finance of the Russian Federation, Federal tax service, the Ministry of economic development and trade of the Russian Federation, Federal customs service and other federal enforcement authorities try to settle along with Bank of Russia of a duty of the credit organisations at realisation of calculations and payments by the edition of legal acts in the form of letters and orders.

In the financially-legal literature at accentuation of special value for regulation of financial relations of instructions, letters and other documents of the Ministry of Finance of the Russian Federation, the Central bank of the Russian Federation set of the standard legal acts containing norms of the financial right is underlined, that in the legal literature, define as the financial legislation; it is thus noticed, that the category "legislation" is used and in other sense: in the Tax code of the Russian Federation and the Budgetary code of the Russian Federation the legislator uses concept "legislation" of narrower sense, i.e. does not use extensive interpretation of this term; the conclusion that legal definition of the financial legislation is not present as a whole becomes.

N.I.Himicheva underlines, that it is not necessary to identify concepts «the financial right» and «the financial legislation» as the term "legislation" in the true sense a word does not assume inclusion in it of normative acts of not legislative level in this connection behind its limits there is a considerable file of sources of the financial right [412 [413].

On the given problematics practically demanded opinion that the bank legislation as a whole represents a considerable file of normative acts of the various hierarchical level including besides federal acts and the subordinate legislation of Bank of Russia, vospo - ljajushchie existing blanks in the right regulation credit-bank is expressed

Activity in what function of Bank of Russia is expressed normotvorcheskaja. In the Annual report of the Central bank of the Russian Federation for 2005 normative acts of Bank of Russia are included in structure of the bank legislation: in section 11.11.5. «Activity of Bank of Russia on perfection of the bank legislation. Pretenzionno-claim work in establishments of Bank of Russia» is noticed, that in 2005 work on perfection of the bank legislation within the limits of Russia carried out by Bank normotvorcheskoj activity has been continued; during the period from January, 1st till December, 31st, 2005 the Bank of Russia accepts 125 normative acts, from them 6 instructions, 15 positions and 104 instructions; from 125 normative acts in Ministry of Justice of Russia 65 normative acts of Bank of Russia are registered: 2 instructions, 11 positions and 52 instructions; besides for the specified period have been prepared and directed all territorial establishments of Bank of Russia of 168 letters of Bank of Russia [414 [415].

Let's consider now directly legal acts of the Central bank of the Russian Federation as sources of the financial right.

With a view of realisation of functions the Bank of Russia on the questions carried to its competence by the Law on Bank of Russia and others federal laws, publishes in the form of instructions, positions, instructions normative acts, obligatory for federal public authorities, public authorities of subjects of the Russian Federation and the local governments, all physical and legal bodies (Law item 7).

For the first time in the Law on Bank of Russia from July, 10th 2002г. Kinds of normative acts which the Bank of Russia and necessity of working out of an order of their preparation and acceptance has the right to publish have been defined. The legislator has not casually emphasised on the above-stated positions. Till the moment of an adoption of law there was a judiciary practice when normative acts of Bank of Russia were appealed by interested subjects and admitted court void not because of adjustable relations or to the contradiction to the federal legislation, and because of non-observance of the form of the legal act, an order of its working out, acceptance, registration Ministry of Justice of the Russian Federation and publication.

The bank of Russia at the edition of the normative acts starts with necessity of meaningful dialogue of body of bank supervision with bank community, improvement of quality of accepted decisions and the general culture of supervision and a banking. The given purposes are proclaimed by Bank of Russia in the Information from the April, 7th, 2003, finished by Department external and public relations of Bank of Russia where it is underlined, that conformity with positions of item 77 of the Federal act «About the Central bank of the Russian Federation (Bank of Russia)» and within the limits of spent work on increase transparentnosti activity in sphere of bank regulation and bank supervision the decision on the publication on page of Bank of Russia in a network the Internet for open discussion of projects of the most important normative acts concerning regulation of bank activity [416 [417] is accepted.

Certificates of Bank of Russia can be systematised on bank operations and bank transactions. Other variant of thematic ordering of normative acts of Bank of Russia - on the basic tools and methods is possible also

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Monetary and credit policy of Bank of Russia.

It is necessary to notice, that normative acts of the State Bank of the USSR if they directly do not contradict the Russian new legislation, up to their special cancellation by Bank of Russia now continue to operate. The given position is quite explainable: bank activity is regulated by legal acts on a technological level, hence, volume of these certificates considerable, in a short time interval it is impossible to create new market regulation of technology, old rules therefore remain. For example, the Instruction of the State Bank of the USSR from October, 30th, 1986 №28 «About the settlement, current and budgetary accounts opened in establishments of the State Bank

The USSR ». In connection with necessity of application of certificates of the State Bank of the USSR lawyers suggest to consider some certificates actually become invalid. Such offer is, as is thought, incorrect as any normative act operates or during the term established in him, or before its cancellation. Hence, in this case it is possible to bring an attention to the question not about actual loss of force of the normative act, and about its recognition doing not come under to application in connection with the contradiction to the operating Russian legislation.

Thus, normative acts of the Central bank of the Russian Federation occupy znachitelnoju a niche in the legal base of all bank system.

Working out and realisation of the Basic directions of a uniform state monetary policy by Bank of Russia it is possible to consider as doktrinalnuju activity. However doctrines and concepts as versions of the standard legal act do not admit courts of justice. As fairly it is underlined in the literature, considering a position of the Constitutional Court of the Russian Federation, doctrines and concepts of any body do not possess standard action, cannot be considered by vessels in their practice, including for an establishment of conformity it of recognised kinds of standard legal acts in this connection acceptance of the accurate state decision on destiny of the standard legal acts possessing doktrinalnym now is necessary harakte -

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Rum.

In the literature that fact is established, that the bank legislation in modern conditions far from a system condition and is offered to change radically legal regulation in bank sphere by codification of the bank legislation [418 [419] [420].

At the same time it is noticed, that today's attempts to develop the Bank code are not connected with current legislation codification, and reflect aspiration to offer as though new model of work of the Central bank or even bank system as a whole [421 [422] [423] [424] [425] [426] more likely. In the Bank code there is no expediency as there are enough federal acts of the same validity.

In jurisprudence three kinds of ordering were designated: inkorpo -

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The portable radio set, codification and consolidation Is thought, the offer on codification of the bank legislation is represented premature because of insufficient prorabotannosti now scientific approaches to definition of a subject and a method of the bank right, and also a place of the bank right in the legal system. Now it is possible to talk about the incorporation which forms can be various. Under incorporation (from an armour. in corpere) it is understood such form of ordering when normative acts of certain level are consolidated completely or partially in different sorts collections or meetings in a certain order (chronological, alphabetic, it is system

Subject).

The offer of experts of Legal department of Bank of Russia on creation of the consolidated Arch bank is worthy pra -

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Twisted.

The stable bank legislation - a basis of the bank system which are, in turn, a key link of market economy. Therefore working out of the bank legislation meeting requirements of an economic situation and reflecting its prospect, - a problem objective and actual [427 [428] [429] [430]. Acceptance of the acts encouraging development of bank system, raising its reliability, obligations and mutual responsibility of all subjects of bank activity Is necessary. As the purpose of legislative regulation of bank activity at the given stage it is necessary to consider a problem of filling of blanks in the legislation corresponding legal acts that pravoprimenitelnaja practice leant not against momentary normative acts of Bank of Russia regulating and supervising body simultaneously, and on stable in time and accurately designated requirements of the legislation, and only after that it will be possible to speak about possibility of codification of the standard material fulfilled and checked up in practice.

2. The legal custom is one of the most ancient versions of sources of law. In the literature the custom is defined as «the rule which has developed on the basis of constant and uniform repetition given faktiche -

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skih relations ». Thus, become the source of law it should to be authorised the state. By definition the custom arises only as a result of repeated repetition of certain behaviour of people, i.e. the behaviour precedes its formation. The term« customs of a business turn », applied in bank practice is fixed in item 836, 848 GK the Russian Federation. The relations developing in the course of realisation by the credit organisations and Bank of Russia of bank activity, can be regulated by positions which do not keep within frameworks of concepts« the regulatory legal act "and" to -

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Dialect ».

Thus, the legal custom can act as a source of the bank legislation.

3. Legal precedent in the legal literature is understood «as such decision of the state body which is accepted for the sample (rule) by the subsequent consideration of similar affairs» [431 [432]. The Source of law precedent traditionally admits the Anglo-American legal system. In our country the unique source of rules of law, as a rule, considered the standard legal act. With reference to precedents scientists specified, that judiciary practice "as that," administrative practice "are not sources of law. It is not the certificate," generating the right between the parties "[433]. At the same time in the literature the opposite position expressed also. So, in 1947 S.I.Vilnjansky noticed, that" our judiciary practice should be recognised as one of sources of the Soviet right "[434]. Now there is a reconsideration of existing sights. The judicial precedent represents more flexible mechanism of overcoming of blanks in the legislation [435]. The Judicial precedent should be considered in two planes: 1) the judicial precedent creates pravopolozhenie which is absent in the normative act and by that overcomes blanks in the legislation; 2) the judicial precedent gives an explanation and regulatory legal act interpretation.

Even more often certificates of courts of justice (as a rule, the higher) are considered as sources of rules of law [436]. And sometimes such characteristic is attributed to enough wide range of judgements. So, judiciary practice in the most various displays — is noticed, that «and at cancellation of normative acts, and in explanations of plenums, and at direct application of the Constitution, and at the permission of concrete disputes — it appears the source of law» [437]. Probably, the given point of view has a little extreme character for here as sources of rules of law certificates of courts of justice which have, more likely, pravoprimenitelnyj character are called, on occasion with elements of analogy of the right and the law. However as a whole it is necessary to recognise, that often higher degrees of jurisdiction accept the decisions possessing signs of sources of law.

Problems of legal precedent as source of rules of law were mentioned in the financially-legal literature. The interesting position that «the judicial precedent as the source of the financial right is presented mainly by decisions of the Constitutional Court of the Russian Federation» is stated. According to the current legislation the Constitutional Court of the Russian Federation is engaged in interpretation of the Constitution of the Russian Federation and its norms, i.e. understands and explains sense of interpreted norms. First, decisions of the specified body are accepted by results of consideration of concrete affairs and the position formulated in them keeps the force for the future decisions. Secondly, containing in decisions of the Constitutional Court of the Russian Federation of the instruction possess signs of rules of law. They proceed from the state (decisions of the Constitutional Court are taken out by a name of the Russian Federation), are obligatory (the item 79 Federal constitutional laws from July, 21st, 1994 «About the Constitutional Court of the Russian Federation» ^tsentralnyj bank of the Russian Federation, carrying out bank regulation, should consider decisions of the Constitutional Court of the Russian Federation. Scientists notice, that «in decisions of the Constitutional Court of the Russian Federation criteria of new legislative regulation, as a rule, are formulated" models "new rules of law» [438 [439] [440], in essence, are designed. Thus certain problem is search of the rule of law in considered is - tochnike. In the literature obshchepriznanno, that all decision but only "core" has put, an essence of a legal position of the judge on which basis it decrees or a sentence [441 [442] is obligatory in precedent not. With reference to traditional structure of decisions of courts of justice a part containing the legal

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Norms, is motivation or opisatelno-motivation. Decisions of the Constitutional court of the Russian Federation all in bolshej degrees start to influence relations in bank sphere.

In the bank right «as a whole arbitration practice carries out function of interpretation of norms of laws and conditions of contracts» [443] promoting formation of uniform practice pravoprimenenija. Thus activity of vessels which is expressed in decisions on concrete affairs and development of uniform judiciary practice, directly is not involved in the mechanism of state regulation of bank activity, and is some kind of way of realisation of separate legal means of regulation from the authorised state bodies.

Thus, realisation of the mechanism of state regulation of bank activity is carried out by three ways: by means of acceptance by representatives on that the state bodies of standard legal acts, by acceptance of individually-legal certificates by bodies of bank regulation and the supervision which realisation do not demand the special decree, and also by acceptance by courts of justice of decisions on the questions connected with state regulation of bank activity.

4. Recently even more often in quality, sources of law (including financial) law-making treaties [444] began to be called. The Law-making treaty is defined in the literature as "the contractual certificate which is laying down law (a behaviour rule), obligatory for the numerous and formally uncertain circle of persons, calculated on the numerous application, operating irrespective of, have arisen or the concrete legal relations provided by it" [445 [446] have stopped; it "the joint legal act, registration of expression of the adjusted isolated wills of subjects of the law-making directed on an establishment of rules of law". Use of the given source of law is caused by character of a situation coming under to legal regulation. In the literature by the bank right international treaties obosnovanno are considered as sources of the bank legislation [447].

As a whole not denying positive influence on public relations of formation of the legal field is priority consisting from kodifitsirovannyh of acts and federal acts, nevertheless it is necessary to underline necessity of the cautious approach for this question, the account of a legal status of all subjects normotvorcheskogo process and non-interference of the federal act to the constitutional norms about independence of Bank of Russia of other public authorities at realisation of the functions. It is thought, that bank regulation inseparably linked with maintenance of stability of national currency.

Thus, efficiency of action of legal acts of the Central bank of the Russian Federation depends on quality normotvorcheskoj activity of Bank of Russia, quality of the legal act, quality pravoprimenitelnoj activity of Bank of Russia, features of the addressee on which the legal act of Bank of Russia is calculated. When the legal act of the Central bank of the Russian Federation starts to carry out functions inherent in it, being directed on the decision of those problems for the sake of which it is accepted, it is possible to speak about its real action in system of monetary and credit relations.

Any even qualitatively prepared legal act will operate insufficiently effectively if it is not supported of the credit organisations or other subjects of bank relations. In this connection the cardinal changes mentioning both a structural part of bank system, and functional, passing now, are fixed by the bank legislation which working out is carried out on the basis of foreign experience, experience of the first years of economic reforms in Russia, modern representations about essence and appointment of financial institutions.

One of factors of efficiency of normative acts of Bank of Russia as sources of the financial right should consider culture increase pravotvorcheskogo process which assumes skilful use by Bank of Russia normotvorcheskogo process as versatile knowledge of the validity, its history and development prospects, and special knowledge of the right, the legal act and pravotvorcheskoj to the technician [448].

Supply with information pravotvorcheskoj activity of Bank of Russia — an indispensable condition of creation of accurate system of the stable and consistent bank legislation, productive action of normative acts of Bank of Russia as sources of the financial right.

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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. Legal acts of the Central bank of the Russian Federation as sources of the financial right:

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  2. § 2. Legal acts of the Central bank of the Russian Federation in system of legal acts of public authorities of the Russian Federation
  3. § 4. Requirements to legal acts of the Central bank of the Russian Federation
  4. § 1. Value and criteria of classification of legal acts of the Central bank of the Russian Federation
  5. § 1. Concept, signs and the jural significance of legal acts of the Central bank of the Russian Federation
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  7. CHAPTER 3. KINDS OF LEGAL ACTS OF THE CENTRAL BANK OF THE RUSSIAN FEDERATION
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  9. § 2. Concept and kinds of normative acts of the Central bank of the Russian Federation
  10. § 2. Concept and kinds of statutory acts of Central bank of the Russian Federation
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  12. CHAPTER 2. REALIZATION OF PRINCIPLES OF FINANCIAL ACTIVITY OF THE CENTRAL BANK OF THE RUSSIAN FEDERATION
  13. CHAPTER 3. DEVELOPMENT OF PRINCIPLES OF FINANCIAL ACTIVITY OF THE CENTRAL BANK OF THE RUSSIAN FEDERATION
  14. 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
  15. § 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.
  16. Zemtsov Andrey Sergeevich. PRINCIPLES of FINANCIAL ACTIVITY of the CENTRAL BANK of the RUSSIAN FEDERATION (FINANCIALLY-LEGAL ASPECTS). The dissertation On competition of a scientific degree of the master of laws Saratov - 2014, 2014
  17. § 1. The central bank of the Russian Federation as public authority in monetary and credit and bank spheres
  18. § 1. Concept, signs and legal value of legal certificates of Central bank of the Russian Federation