<<
>>

§ 1. Powers of Bank of Russia on the state registration The credit organisations and to licensing of bank activity

Possessing state-imperious powers in relation to other elements of bank system, the Bank of Russia supervises processes of creation of the new credit organisations, expansions of sphere of their activity and reorganisation of the operating credit organisations.

With a view of revealing of problems which can arise at bank on possible earlier stages of its activity, the law are established a procedure for registration of the credit organisations and delivery of licences by it on realisation of bank operations. According to operating edition of the Law on Bank of Russia the state registration of the credit organisations and licensing of bank activity is carried out by Bank of Russia. At this stage the Bank of Russia checks the charter, the constituent instruments of the credit organisation made to them of change and addition about conformity to the legislation. Besides, nominees on a post of heads of executive powers and the chief accountant of the credit organisation should be adjusted with Bank of Russia for the purpose of check of their conformity to shown qualifying requirements.

However, in connection with Federal act acceptance «About the state registration of legal bodies» [72] (further — the Law on registration), and also the Federal act «About reduction of acts in conformity with

The federal act «About the state registration of legal bodies» [73 [74], becoming effective from July, 1st, 2002, changes an order of the state registration of the credit organisations.

Now, new edition of article 12 of the Law on banks, defines, that «the credit organisations come under to the state registration according to the Federal act" About the state registration of legal bodies "taking into account the established special order of the state registration of the credit organisations.

New edition of article 58 of the Law on Bank of Russia [75] establishes, that the Bank of Russia makes the decision on the state registration of the credit organisations and with a view of realisation of control and supervising functions by it leads the book of the state registration of the credit organisations, gives out to the credit organisations of the licence for realisation of bank operations and withdraws them.

Thus, according to new order, the decision on the state registration of the credit organisation is accepted by Bank of Russia. Entering into the uniform state register of legal bodies of data on creation, reorganisation and liquidation of the credit organisations, and also other data provided by federal acts, is carried out by the authorised registering body on the basis of the decision of Bank of Russia on corresponding state registration. Interaction of Bank of Russia with the authorised registering body concerning the state registration of the credit organisations is carried out in the order adjusted by Bank of Russia with authorised registering body.

The bank of Russia with a view of realisation of control and supervising functions by it leads the Book of the state registration of the credit organisations

In an order established by federal acts and normative acts accepted according to them of Bank of Russia.

For the state registration of the credit organisations the State Tax in an order and in sizes which are established by the legislation of the Russian Federation is levied.

The credit organisation is obliged to inform Bank of Russia on change of the data specified in the item 1.ст.5 of the Law on registration, except for data on the received licences, within three days from the moment of such changes. The bank of Russia not later than one working day from the date of receipt of the corresponding information from the credit organisation informs on it in the authorised registering body which brings in the uniform state register of legal bodies record about change of data on the credit organisation.

&

The governmental order of the Russian Federation from May, 17th, 2002 № 319 «About the authorised federal enforcement authority which is carrying out the state registration of legal bodies» the authorised registering body it is defined MHC России1. According to the author of dissertation, this decision regarding an establishment of the authorised registering body in the name of MHC to Russia mismatches article 51 GK the Russian Federation according to which the state registration of legal bodies is carried out by judicial authorities. For reduction of the specified decision in conformity with GK the Russian Federation is obviously necessary in point the first the given decision to exclude words «the Ministry of the Russian Federation of taxes and tax collections», having replaced with their words «Ministry of Justice of the Russian Federation».

The licence for realisation of bank operations stands out the credit organisation after its state registration.

The credit organisation has the right to carry out bank operations from the moment of reception of the licence which have been given out by Bank of Russia.

For consideration of a question on licensing licence gathering in the size defined by Bank of Russia, but no more than 1 percent from the declared charter capital of the credit organisation is levied. The specified gathering arrives in the income of the federal budget.

Realisation of bank operations is made only on the basis of the licence which are given out by Bank of Russia.

The licences which are given out by Bank of Russia, are considered in the register of the given out licences for realisation of bank operations.

The register of the licences given out to the credit organisations comes under to the publication Bank of Russia in the official publication of Bank of Russia ("the Bulletin of Bank of Russia") not less often than an once in a year. [76] changes and additions in the specified register are published by Bank of Russia in a month from the date of their entering into the register.

In the licence for realisation of bank operations bank operations to which realisation the given credit organisation has the right, and also currency in which these bank operations can be carried out are specified.

The licence for realisation of bank operations stands out without restriction of terms of its action.

Realisation by the legal body of bank operations without the licence involves collecting from such legal person of all sum received as a result of realisation of given operations, and also exaction of a penalty in the double size of this sum of the federal budget. Collecting is made judicially under the claim of the public prosecutor, the corresponding federal enforcement authority authorised on those by the federal act, or Bank of Russia.

The bank of Russia has the right to make in arbitration court the claim about liquidation of the legal person who are carrying out without the licence bank operations.

P

The citizens who are illegally carrying out bank operations, bear in a statutory order civil-law, administrative or the criminal liability.

The operating order of the state registration of the credit organisations and reception of the licence for realisation of bank operations in Bank of Russia provides granting of following documents [77]:

1) the statement with the petition for the state registration of the credit organisation and licensing for realisation of bank operations; in the statement data on the address (location) of constantly operating executive office of the credit organisation on which communication with the credit organisation is carried out also are specified;

2) articles of incorporation (the original or notarially certificated copy) if its signing is provided by the federal act;

3) the charter (the original or notarially certificated copy);

ABOUT:

4) the business plan approved by meeting of founders (participants) of the credit organisation, the report of meeting of the founders (participants), containing decisions on the statement of the charter of the credit organisation, and also nominees for appointment to posts of the head of the credit organisation and the chief accountant of the credit organisation. The order of drawing up of the business plan of the credit organisation and criteria of its estimation are established by normative acts of Bank of Russia;

5) documents on payment of a State Tax and licence gathering;

6) copies of documents on the state registration of founders - legal bodies, audit reports about reliability of their fiscal accounting, and also acknowledgement by tax organs of performance by founders - legal bodies of obligations to the federal budget, budgets of subjects of the Russian Federation and local budgets for last three years;

7) the documents confirming sources of an origin of means, brought by founders - physical persons in ustavnyj the capital of the credit organisation;

8) questionnaires of candidates on a post of the head of the credit organisation, the chief accountant, assistants to the chief accountant of the credit organisation, and also on a post of the head, deputy heads, the chief accountant, assistants to the chief accountant of branch of the credit organisation. The specified questionnaires are filled with these candidates with own hand and should contain the data established by normative acts of Bank of Russia, and also data:

- About presence at these persons of the higher legal or an economic education (with representation of a copy of the diploma or the document replacing it) and experience of a management by a department or other division of the credit organisation connected with realisation of bank operations, not less than one year, and in the absence of the professional education - management experience by such division not less than two years;

- About presence (absence) of a previous conviction.

At representation of the above-stated documents the Bank of Russia gives out to founders of the credit organisation a written assurance of receipt from them documents.

According to item 15 of the Law on banks, decision-making on the state registration of the credit organisation and licensing for realisation of bank operations or about refusal in it is made in time, not exceeding six months. This term establishes Bank of Russia. [78]

After decision-making on the state registration of the credit organisation the Bank of Russia directs the [79] data necessary for their entering into the uniform state register of legal bodies, and corresponding documents to the authorised registering body.

On the basis of the specified decision accepted by Bank of Russia, and the necessary data presented to it and documents the authorised registering body in time no more than five working days from the date of reception of necessary data and documents, brings in the uniform state register of legal bodies corresponding record and not later than the working day following day of entering of corresponding record, informs on it in Bank of Russia.

6

The bank of Russia, not later than three working days from the date of reception from the authorised registering body of the information about brought in the uniform state register of legal bodies of record about the state registration of the credit organisation, notifies on it its founders with the requirement to make in a month payment of 100 percent of the declared charter capital of the credit organisation, and gives out to founders the document confirming the fact of entering of record about the credit organisation in the uniform state register of legal bodies.

The neopayment or incomplete payment of the charter capital is when due hereunder the basis for the reference of Bank of Russia in court with the requirement about liquidation of the credit organisation.

For payment of the charter capital the Bank of Russia opens to the registered bank, and at necessity and not bank credit organisation the correspondent bank account of Russia which requisites are specified in the notice of Bank of Russia on the state registration of the credit organisation and delivery to it to the licence for realisation of bank operations.

At a presentation of the documents confirming payment of 100 percent of the declared charter capital of the credit organisation, the Bank of Russia in three-day term grants the credit organisation the licence for realisation bank операций.1

Refusal in the state registration of the credit organisation and delivery to it the licence for realisation of bank operations is supposed only on following bases:

1) discrepancy of the candidates offered on a post of the head of the credit organisation, the chief accountant of the credit organisation and its assistants, to the qualifying requirements established by federal acts and normative acts accepted according to them of Bank of Russia. Under discrepancy of the candidates offered on specified posts, to these qualifying requirements are understood:

It is necessary to notice, that the business reputation in the Law on banks is understood as an estimation of professional and other qualities of the person allowing it to hold corresponding post in controls of the credit organisation. [81 [82]

The law on registration provides additional requirements on registration and delivery of licences for the credit organisations with foreign investments.

For the state registration of the credit organisations with foreign investments, branches of foreign banks, and also receptions of the licence by them on realisation of bank operations, besides specified above documents in addition are represented following documents:

1) the decision on participation of the foreign investor in creation of the credit organisation in territory of the Russian Federation or about opening of branch of foreign bank;

2) the document confirming registration of the foreign investor as the legal person, and balances for three previous years confirmed with an audit report;

3) the written approval of corresponding control body of the country of a residence of the foreign investor to participation in creation of the credit organisation to territories of the Russian Federation or on opening of branch of foreign bank when such permission is required under the legislation of the country of its residence.

According to item 18 of the Law on banks, the size (quota) of participation of the foreign capital in bank system of the Russian Federation is established by the federal act under the offer of the Government of the Russian Federation, adjusted with Bank of Russia. The specified quota pays off as the relation of the total capital,

Belonging to non-residents in charter capitals of the credit organisations with foreign investments, and the capital of branches of foreign banks to the cumulative charter capital of the credit organisations registered in territory of the Russian Federation.

tt>

The bank of Russia ceases delivery of licences for realisation of bank operations to banks with foreign investments, to branches of foreign banks at achievement of the established quota.

In case the credit organisation wishes to increase the size of the charter capital at the expense of means of non-residents, it is obliged to receive the corresponding permission of Bank of Russia. The permission of Bank of Russia is required and in case of alienation (including sales) the credit organisation of the actions (shares) in favour of non-residents, and also in case of alienation by participants of the credit organisation — residents - actions (shares) of the credit organisation belonging to them in favour of non-residents. The specified transactions made without the permission of Bank of Russia, can be recognised by void. [83]

The bank of Russia has the right to impose a ban for increase in the charter capital of the credit organisation at the expense of means of non-residents and for alienation of actions (shares) in favour of non-residents if result of the specified action is excess of a quota of participation of the foreign capital in bank system of the Russian Federation.

The statement for intention to increase ustavnyj the capital of the credit organisation at the expense of means of non-residents and about alienation of actions (shares) in favour of non-residents is considered by Bank of Russia in two-month term from the date of a filing of application. Result of its consideration is the permission of Bank of Russia to carrying out of the operation specified in the statement or motivirovannyj refusal in writing. In case the bank of Russia has not informed on the accepted decision during a target date, the specified operation is considered resolved.

The bank of Russia has the right to establish additional requirements to the credit organisations with foreign investments and to branches of foreign banks concerning obligatory specifications, an order of representation of the reporting, the statement of structure of a management and the list of carried out bank operations, and also concerning the minimum size of the charter capital of again registered credit organisations with foreign investments and the minimum size of the capital of again registered branches of foreign banks.

In development of the federal acts regulating questions of the state registration of the credit organisations and licensing of bank activity, Bank of Russia has accepted the special Instruction from 23.07.98 № 75 (further — the Instruction 75) [84 [85] which regulates a procedure for registration of the credit organisations and delivery of licences by it, and also an order of opening (closing) of divisions of the credit organisation (branch), expansion of their activity by reception of additional licences in more details, registration of modification and additions in their charters, reorganisation of the credit organisations; the order of registration of corresponding documents, etc. the Instruction also contains requirements to founders of the credit organisation.

Features of registration of the credit organisations with foreign investments and the order of reception of prior permission of Bank of Russia on increase in the charter capital of the registered credit organisation at the expense of means of non-residents is regulated by corresponding Position of Bank of Russia. For reception of the licence for realisation of bank operations the credit organisation should have the charter capital in the size established by Bank of Russia, the equipment necessary for realisation of bank operations, and also fulfil the qualifying requirements shown to experts according to normative acts of Bank of Russia.

The instructions of Bank of Russia from June, 24th, 1999 N 586 [86] establish requirements to the minimum size of the charter capital necessary for creation of the credit organisation, the size of own means (capital) of the bank petitioning for reception of the General licence for realisation of bank operations, and also to the size of own means (capital) of the credit organisation petitioning for change of a kind from not bank credit organisation on bank.

The minimum size of the charter capital of created bank constitutes the sum, equivalent 5 million euro.

The minimum size of the charter capital of the created not bank credit organisation, except for the affiliated not bank credit organisation of foreign bank, constitutes the sum, equivalent 500 thousand euro.

The minimum size of the charter capital of the created affiliated credit organisation of foreign bank constitutes the sum, equivalent 5 million euro.

The size of own means (capital) of the bank petitioning for reception of the General licence for realisation of bank operations, should be not less the sum equivalent to 5 million of euro.

The size of own means (capital) of the credit organisation petitioning for change of a kind from not bank credit organisation on bank, should be not less the sum equivalent to 5 million of euro.

The rouble equivalent of the minimum charter capital necessary for creation of the credit organisation, the size of own means (capital) of the operating bank petitioning for reception of the General licence for realisation of bank operations, and also the size of own means (capital) of the credit organisation petitioning for change of a kind from not bank credit organisation on bank, is defined by Bank of Russia quarterly, to 5th day of the first month of quarter on the basis of an euro exchange rate in relation to the Russian rouble, established by Bank of Russia as of last working day of last month of previous quarter.

Rouble equivalents of the specified requirements are specified in the current second quarter 2000 in the telegramme of Bank of Russia № 40 (the governmental scheme seven) from April, 5th, 2002. [87]

Following kinds of licences for realisation of bank operations can be given out the newly founded bank:

- The licence for realisation of bank operations with means in roubles (without the attraction right in contributions of money resources of physical persons);

- The licence for realisation of bank operations with means in roubles and a foreign currency (without the attraction right in contributions of money resources of physical persons). In the presence of the specified licence the bank has the right to establish correspondent relations with foreign banks;

- The licence for attraction in contributions and placing of precious metals.

Depending on its appointment following kinds of licences for realisation of bank operations can be given out the newly founded not bank credit organisation:

- The licence for realisation of bank operations with means in roubles or with means in roubles and a foreign currency for the settlement not bank credit organisations;

- The licence for realisation of collection of money resources, bills, payment and settlement documents for not bank credit organisations - the collection organisations. [88]

After reception of the conclusion of territorial establishment of Bank of Russia the Bank of Russia within three working days makes on payment of 100 percent of the charter capital the decision on licensing and directs to territorial establishment 2 copies of the licence for realisation by the credit organisation of bank operations.

Territorial establishment of Bank of Russia:

- Leads the register of the given out licences;

- Grants the first copy of the licence to the chairman of board of directors of the credit organisation or other authorised person who is recording in writing reception of the specified document.

The credit organisation for expansion of activity by reception of additional licences should be financially steady within last 6 months; to fulfil obligatory reserve requirements of Bank of Russia; not to have debts against the federal budget, the budget of the subject of the Russian Federation, the local budget and the state off-budget funds; to have the corresponding organizational structure including service of the internal control; to fulfil qualifying requirements of Bank of Russia to employees of the credit organisation; to observe technical requirements, including requirements to the equipment necessary for realisation of bank operations.

AND

For activity expansion following kinds of licences for realisation of bank operations can be given out operating bank:

- The licence for realisation of bank operations with means in roubles and a foreign currency (without the attraction right in contributions of money resources of physical persons). In the presence of the specified licence the bank has the right to establish correspondent relations with unlimited quantity of foreign banks;

- The licence for attraction in contributions and placing of precious metals. The specified licence can be given out bank at presence or simultaneously with the licence for realisation of bank operations with means in roubles and a foreign currency;

- The licence for attraction in contributions of money resources of physical persons to roubles;

- The licence for attraction in contributions of money resources of physical persons to roubles and foreign валюте.1

The order of delivery of the general licence to the bank having the licences for realisation of all bank operations with means in roubles and a foreign currency and fulfilling the Russia established by Bank of the requirement to the size of the capital is specified by Instructions of Bank of Russia from 16.11.2001 № 1053 (further - Instructions 1053). [89 [90]

It is necessary to notice, that presence or absence of the licence for realisation of bank operations with precious metals is not compulsory condition for General licence reception. [91]

The bank having the General licence, has the right to create when due hereunder branches abroad the Russian Federation and (or) to get shares (action) in the charter capital of the credit organisations - non-residents.

By consideration of a question on delivery to General licence bank in it complex inspection check in an order established by Bank of Russia is spent, or results of inspection check if it has been finished not earlier than before three months before representation of the petition for delivery of the given licence in territorial establishment of Bank of Russia are taken into consideration.

Licences for realisation of the specified bank operations, can be given out bank in the event that from the date of its state registration has passed not less than two years.

The Nebankovsky credit organisation which is carrying out operations by calculations, can expand a circle of carried out bank operations by reception of the licence containing wider list of bank operations.

For reception of the licence expanding activity, the credit organisation should present to territorial establishment of Bank of Russia, carrying out supervision of activity of the credit organisation, following documents:

- The petition signed by the chairman of board of directors or other authorised person, including business - the plan of the credit organisation or addition to it;

- The published annual report assured by the auditor organisation, and audit report for a year previous the reference of the credit organisation behind reception of the licence, expanding activity (in case the specified documents were not represented earlier to territorial establishment of Bank of Russia);

- Balance and calculation of economic specifications for last accounting date.

The territorial establishment of Bank of Russia, carrying out supervision of activity of the credit organisation, prepares the conclusion about possibility of delivery of the credit organisation of the licence expanding its activity which with the complete set of the documents received from the credit organisation, goes to Bank of Russia (Department of licensing of bank and auditor activity).

The order of change of a kind of the credit organisation from not bank credit organisation on bank is regulated by Instructions of Bank of Russia from 05.11.2001 № 1044 (further — Instructions 1044) * which establishes an order of change of a kind of the credit organisation from not bank credit organisation on bank.

The law on banks in edition FZ № 82-FZ defines from 19.06.2001, that the Bank of Russia has not the right to demand from earlier registered credit organisations of change of the size of their charter capital. [92 [93] as already it was marked above, according to Instructions 1053, the credit organisation petitioning for change of a kind from not bank credit organisation on bank, should have own means (capital) at a rate of not less 5 million euro. Besides, from the moment of the coordination Bank of Russia of respective alterations and additions in constituent instruments such credit organisation is obliged to observe prudentsialnye the norms of activity established by normative acts of Bank of Russia concerning banks.

It is necessary to notice, that the period of time necessary for reception of the licence for attraction in contributions of money resources of physical persons, it is estimated from the date of the coordination in Bank of Russia of changes and additions in constituent instruments of the credit organisation, connected with change of its kind from not bank credit organisation on bank.

<< | >>
A source: Maksimov Michael Veniaminovich. FEATURES OF LEGAL REGULATION OF THE CONTROL AND SUPERVISION IN SPHERE OF BANK ACTIVITY IN THE RUSSIAN FEDERATION. THE DISSERTATION On competition of a scientific degree of the master of laws. Moscow - 2002. 2002

More on topic § 1. Powers of Bank of Russia on the state registration The credit organisations and to licensing of bank activity:

  1. 1.3. Powers of territorial establishments of Bank of Russia on consideration of the reporting of the credit organisations on currency transactions
  2. 1.2. Powers of territorial establishments of Bank of Russia on carrying out of checks of the credit organisations concerning observance of the currency legislation
  3. §3. Features of application by Bank of Russia of sanctions to the credit organisations for infringements of the bank legislation
  4. § 2. Features of legal regulation of realisation by Bank of Russia of supervision of activity of the credit organisations
  5. 2.1. Concept, essence, the purposes and value of supervision of Bank of Russia behind activity of the credit organisations
  6. 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
  7. Chapter 2. Legal bases and problems of supervision of Bank of Russia behind activity of the credit organisations
  8. the Chapter II. Activity of Bank of Russia in monetary and credit and bank spheres of the Russian Federation
  9. § 3. Enterprise activity not bank credit the organisations
  10. kinds of the credit organisations as subjects of supervision of Bank of Russia
  11. §1. Powers of the Central bank of the Russian Federation on regulation of bank activity
  12. § 3. Features of a legal status of Bank of Russia as body of state regulation of bank activity.
  13. activity of the credit organisations as object of bank supervision
  14. §1.2. CONCEPT OF THE BANK CREDIT AS DEFINING KA TEGORII BANK ACTIVITY
  15. §3. Powers of the Central bank of Russia in the conditions of bank crises
  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
  17. Rybakova Svetlana Viktorovna. Legal regulation of supervision of Bank of Russia behind activity The credit organisations. The dissertation on competition of a scientific degree of the master of laws. Saratov 2001, 2001
  18. 2.1. The organisation of the bank control in the course of diagnostics of credit risk of the client and a credit portfolio of bank.
  19. § 5. Working out and carrying out by Bank of Russia together with the Government of the Russian Federation of the uniform state Monetary and credit policy