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Preconditions of perfection of the legislation in sphere of legal regulation of the information of the limited access in bank activity

Among the factors influencing change of the legislation in the field of a banking secrecy, it is possible to allocate:

1. G eopoliticheskie factors:

- Creation of the interstate unions, "deleting" of frontiers in the unions;

- Change of borders of the states;

2.

Political factors:

- Actions of the states and the interstate associations, directed on counteraction to terrorism;

- Aggravation of an international situation, war for territory repartition;

3. Legal factors:

- Creation nadgosudarstvennogo a uniform legal field with the possibility of information interchange which is under protection of bank and tax secrets;

- Unification of the international legislation in the field of a banking secrecy and counteraction of legalisation of the incomes received criminal by, and to terrorism financing;

4. Business factors:

- Financial crises;

- Application of the international economic sanctions;

5. Social factors:

- Safety of citizens;

- Stability of a society.

All listed factors in a complex make direct impact on banking secrecy institute, being preconditions of change of the legislation in the given sphere.

Creation — the European Union — has made on territories of Europe of uniform interstate formation huge impact on Union exhibiting countries.

European Union Exhibiting countries are obliged to observe requirements of the legislation of the European Union, and also, at their contradiction to the national legislation to bring it into accord with the European Union legislation. Also, in the European Union there is a tendency to unification of the legislation of exhibiting countries.

The given fact directly mentions also the norms regulating a banking secrecy at level of exhibiting countries of the European Union.

The situation with a banking secrecy becomes complicated also that in the various countries historically developed relation to a banking secrecy and the sources of the right regulating it, at times considerably differ from each other. G ovorja about right sources, it is possible to note and judicial precedent (the Great Britain, the former countries-colonies of British Empire), and legal custom (Italy, Andorra), and the law (Germany, France, the Russian Federation, etc.). Accordingly, and the relation of the state and participants pravootnosheny to banking secrecy institute in the different countries does not differ unity.

However the general trend of the states and the interstate unions at the present stage of development of a society is uniform. Despite huge value of institute of a banking secrecy for a state financial system, and in some cases and for country gross national product (an example: Androrra, Austria, Cyprus, Liechtenstein, Luxembourg, Switzerland and so forth), is available the tendency to unification of the legislation on a banking secrecy and to restriction of sphere of its application. [70 [71]

In brief we will cover a current situation on a banking secrecy condition in the key countries of Europe and America.

In many countries the banking secrecy is regulated by norms of the special legislation. Seldom norms of the legislation regulating institute of a banking secrecy, have the constitutional character. As an example it is possible to result Austria where positions of the law on the bank activity, concerning establishments and banking secrecy regulations, can be changed only National meeting and not less than 2/3 voices, at least, from half of its participants.

In other countries of the world legal regulation of a banking secrecy is based on precedents and business customs, and also in administrative practice. The tendency of addition of precedents and customs was outlined in second half 20 — the beginning of 21 centuries in the states with the granted system of the right acts on separate questions of legal regulation.

In the countries with the general system of the right the principle according to which confidentiality of relations between bank and the client occurs from contract obligations between bank and the client [72 [73] operates.

Last years in pravotvorcheskoj activity of exhibiting countries of the European Union, and also Northern and Central America and Russia the tendency was outlined in accurate definition of concept "banking secrecy", its object and a condition of action of its legal regime. In this connection the quantity of the acts devoted to the given question in the various countries has grown.

The second tendency concerns the countries in which already there are similar laws. In this case the amendments regulating access to a banking secrecy are made to operating acts. For example, we take Spain. In Spain till 2002 there was no the law regulating institute of a banking secrecy. Unlike Andorra where also there is no legislative fastening of a banking secrecy, and nevertheless it is strictly observed, in Spain the banking secrecy was absent de facto, that is tax bodies, police and so forth had access to the information on clients of banks, their accounts and operations without any reservations or restrictions. The law accepted in 2002 only has fixed available for the state bodies and power power structures.

In the general law countries — the Great Britain, Ireland and the countries-were colonies of British Empire — with small features the banking secrecy results from contract relations between the client and bank. Banks bear responsibility for a keeping confidential concerning affairs of the clients. Such position of banks completely admits courts, and clients in case of banking secrecy infringement can demand compensation suffered by them at disclosing of a banking secrecy of losses full volume, or compensation on a cause of infringement of treaty obligations from bank. By similar contracts it is regulated as well a duty of banks to storage of the received information as fiduciary and after the termination of relations (after hours accounts). The tendency was outlined In the general law countries on legislative restriction of a banking secrecy also. The reasons in this case possible preconditions to legislative regulation of institute of a banking secrecy is the insufficient quantity of precedents for legal regulation of access to the given information.

And, at last, the third type of the states which also it was mentioned above, are the states in which banking secrecy regulation is absent basically. In one, for example, in Andorra, such "defect" does not affect in any way [74] protection of the confidential information. The developed tradition of a banking secrecy in this country is strictly observed and preserved. In Italy it is possible to observe an opposite position on the given question: źtime of a banking secrecy is not present, and there is nothing to regulate it — quiteź sensible "approach" [75].

The basic sources of legal regulation of a banking secrecy and general provisions on a banking secrecy for the various European countries are more low resulted (Table 4 see. Features of legal regulation of a banking secrecy in some countries of the world).

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Table 4. Features of legal regulation of a banking secrecy in some countries of the world

The country The basic source

The legal

Regulations

Substantive provisions about a banking secrecy
Austria The special Credit institutes, their proprietors, officers of board, workers
The legislation Banks and other persons operating on behalf of banks, should not open or use the secrets, which steels it are known or accessible,
The law on the bank Exclusively because of their business relations with clients are obliged.
Activity (ž 38) The given duty is imposed also on workers of Central bank of Austria and other imperious bodies if it such information became known in process vypolnenijami for them of the official functions.

Duty to keep the received confidential information as fiduciary has no restrictions on time.

The law provides insignificant number of exceptions when such information can be opened.

Andorra The special The banking secrecy in Andorra is not regulated any
The legislation Certain laws, but is unwritten developed

77 See: Bank Finance and Regulation. A Lex Mundi Multi-Jurisdictional Survey prepared by the Lex Mundi Bank Finance and Regulations Practice Group. September 2006; Report on Banking Secrecy. Anti-Fraud and Anti-Money Laundering Committee and Fiscal Committee. The European Banking Federation. Brussels. April, 2004; Improving Access to Bank Information for Tax Purposes. The 2003 Progress Report. OECD, 2003; Improving Access to Bank Information for Tax Purposes. OECD, 2000.

No By the standard of activity also it is strictly observed. Banking secrecy bases lay in positions of the Constitution of 1993 guaranteeing secret of private life. The criminal legislation strictly punishes for banking secrecy infringement. At the same time for the purpose of struggle by legalisation of criminal incomes in 2000 in Andorra the special law regulating questions of the international cooperation in this sphere which allows to raise on occasion a veil of a banking secrecy has been passed and to transfer the necessary information to the foreign authorities. The information transfer is interfaced to serious procedural complexities and is possible only concerning the crimes which are those and under the legislation of Andorra (evasion from payment of taxes or not payment by those are not)
Belgium The special

The legislation

No

The banking secrecy is defined as źprofessional secret╗ and its infringement does not attract criminal punishment, but only the civil-law.

In a place with that, the Belgian legislation establishes separate guarantees not disclosure of the bank information to the third parties (including and to tax bodies) which are strongly levelled by the big number of exceptions established by separate laws. So, article 318 of the Code about surtax forbids the tax authorities to use for

The taxation (except banks) the information received during checks of banking establishments.
In elikobritanija The special According to norms of a general law banks are obliged to keep
The legislation Confidentiality concerning the affairs with clients. Such duty
No Results from the operating contract between bank and the client and completely admits courts. At the same time criminal punishment for
Norms of the general operate Infringement of confidentiality does not provide a general law.
The rights, (for example, Separate laws and judiciary practice provides possibilities for
The decision on business v. National Provincial and Union Bank of England, 1924 1KB 461) Removals of a veil of a banking secrecy
Hungary The special The law on credit institutes and the financial enterprises imposes
The legislation On workers of banks a duty to keep secret the information, concerning interests of the clients: personal data, activity,
The law № CXII from 1996 about Transactions and balances under accounts.
Credit institutes and There is a criminal punishment for not authorised by the law
The financial

The enterprises

Disclosing of the information concerning a banking secrecy.
G ermanija The special

The legislation

No

Positions about a banking secrecy is based on norms of civil law and first of all on the contract obligations arising between bank and the client according to which the bank is obliged to keep confidentiality of affairs of the client. Special laws establish a duty of banks, with a number of essential restrictions, to transfer the information on clients and their affairs to tax bodies.
G ibraltar The special The situation with Gibraltar is interesting to that as a colony
The legislation The Great Britain, this jurisdiction for regulation of questions of a banking secrecy uses both norms of a general law, and the local special
Bank ordonans The legislation. All positions of the British right are applicable in
Gibraltar of 1992 Gibraltar.

Bank ordonans basically regulates a granting question

Norms of a general law The bank information to supervising bodies of this jurisdiction.
Greece The special The specified law establishes, that źany kinds of deposits in
The legislation. Credit institutes contain as fiduciary ╗. Besides banks should not open the third person of a detail and character of customer relationships,
The legislative decree Including transactions. For infringement of positions about bank privacy
1059/1971 The guilty person can be punished in the form of imprisonment. However essential exceptions allow to get access to the bank
Information to a wide range of the third parties: to tax bodies, courts, bank of Greece and even in some cases to creditors.
Denmark The special legislation.

The law on financing activities

Councillors of directors, founders, any workers of banks, liquidators, auditors of the inspector and a number of other persons cannot open or use the confidential information without the due basis. The same restrictions are imposed and on addressees of such information. Infringements of such obligation it is punished by sanctions.

The concept of a banking secrecy is strongly levelled by positions of other laws, and a duty of banks to transfer to tax bodies the information on clients on an automatic basis

Ireland The special

The legislation

No

Norms of a general law operate

According to norms of a general law banks are obliged to keep confidentiality concerning the affairs with clients. Such duty results from the operating contract between bank and the client and completely admits courts. At the same time for infringement of confidentiality the general law does not provide criminal punishment.
Spain The special

The legislation

Before acceptance in 2002 of the special law imposing on banks to keep a duty as fiduciary data and operations of the clients, in Spain there was only indirect regulation of a banking secrecy
The law № 44/2002 (The constitution of 1978 which established secret personal and home life, position of the law 26/1988). Also the banking secrecy was based on operating contracts and the developed practice.
Italy The special

The legislation

No

Banks try to keep a secret operations spent by clients though it and is not established by any special law.
The tradition and administrative practice operates and

Numerous rules

Cyprus The special

The legislation

The law on bank activity from 1997

Directors, managers, workers of banks, agents and other persons, owing to those or other reasons got access to the bank information, are obliged to keep the received information secret. The given duty is imposed on the specified persons both in the course of their activity, and after resignation or dismissal. For infringement of positions about a banking secrecy punishment in the form of imprisonment or the fine is provided.
Latvia The special The law establishes, that a duty of credit institute is
The legislation

The law on credit institutes from 1995

Preservation of confidentiality of the person, accounts, deposits and transactions of the client. Managers, managers, workers of credit institute, and also representatives of the state bodies for whom owing to performance of official duties the confidential information became known, are obliged to keep professional secret on penalty of punishments. A duty to keep as fiduciary received information extends on all specified above persons, and after the termination of performance of the duties by them. Disclosing of the confidential information: to the tax authorities, Office of Public Prosecutor, courts, Bank of Latvia and the Commission on the financial market and the capital market is not obligation infringement to store professional secret.
Lithuania The special The new law on banks from 2004 contains definition źsecrets
The legislation Bank ╗which concerns any data and the information about: accounts
Opened in bank, balances under the accounts, carried out operations, conditions
The law on banks from 2004 On which services, client's obligations, financial are rendered
Year. Situations of the client and some other data. Bank, bank employees
And the third parties which the information carried to secrets of bank, became
Also it is regulated It is known, should not open to its third parties, except cases
Civil, Established by the Law on banks and other laws. Definition
Administrative and criminal law Banking secrecy contains also in the Civil code.

Administrative and criminal codes establish sanctions for banking secrecy infringement (last — a trade secret as a whole).

Liechtenstein The special

The legislation

The law on banks and commercial finance companies from 1992 (Article. 14)

According to the law members of executive powers, employees of banks and other personnel is obliged to keep secret any information which became known for it as a result of execution of the duties by them. Such duty has no time restriction and concerns also employees of the state bodies for whom the information became known owing to performance of the functions.

For employees of banks the duty remains to give evidences before local criminal courts, and also to inform on suspicions in fulfilment of serious criminal offences.

Luxembourg The special legislation.

The law on a financial sector from 1993 and the Code about punishments

The law on a financial sector imposes a duty on any employee of financial institutions to keep a secret the information received by it at execution of the professional duties. Besides, a duty to store a banking secrecy is the basic duty according to positions about źprofessional secret╗ established by the Code about punishments.

The law establishes cases when the information can be opened

To the third parties, basically it concerns cases of supervision of bank activity.

The law is stipulated especially, that by the information received for one purposes, cannot be used for others (i.e. The information transferred according to positions about struggle against legalisation of criminal incomes, cannot be used for the taxation)

Malta The special

The legislation

The law on bank activity from 1994

The law about

To professional secret from 1994

Duties to store a banking secrecy are fixed in a number of laws operating on Malta: the law on bank activity, the law on professional secret and the Criminal code. The given laws impose on all officials occupied in a financial sector to store any received by them at realisation of the activity the information as fiduciary in a current of all rest of the time. For infringement punishments in the form of the penalty, imprisonment or that and another simultaneously are provided. It is lawfully strictly defined, when the banking secrecy can be broken.
The Netherlands The special

The legislation

No

The legislation of the Netherlands on a banking secrecy as that is absent. The Netherlands legislation accurately does not establish, who is obliged to store secret, the person who knows is established only, that or
It could be known owing to carried out duties or a post, that it has been obliged to store secret is guilty of a criminal offence. From the point of view of criminal law employees of banks cannot refer to professional secret, and are obliged to give a testimony. As business and in civil processes is, not looking that in the General conditions of rendering of banking services behind banks the duty is fixed to store a banking secrecy.
Poland The special

The legislation

The law on bank activity from August, 29th, 1997

According to the legislation in Poland a banking secrecy are covered any information, concerning bank activity, including the information concerning clients. Banks, their employees and persons through which banks carry out the activity, are obliged to store a banking secrecy. The banking secrecy veil can be raised only in t cases defined by the law.
Portugal The special

The legislation

The decree № 298/92 from 1992 added with considerable number

Members of bodies of board and audit, credit institutes, their workers, representatives, agents and other persons rendering to them of service on a constant or time basis should not publish or use the information, concerning activity of credit institutes and their mutual relations with clients. Names of clients, accounts and movements under accounts are under protection of professional secret. The given protection not
The subsequent decrees Stops with the termination of relations.

The law establishes cases when the information can be opened to the third parties.

Slovakia The special

The legislation

The law on bank activity № 483/2001

Workers, banks, members of controls and supervision are obliged to store the information infringing interests of banks and clients as fiduciary both during a finding in a post, and after the termination of performance of the duties. Any information and the documents, concerning bank customers and their activity which cannot be received from open sources, and especially the information on transactions and balances of accounts falls under action of positions about a banking secrecy. From the point of view of a banking secrecy, persons with whom terms of transaction were discussed are considered as bank customers also, but they have not been made.

The law supposes disclosing of the confidential information in strictly certain cases.

Slovenia The special

The legislation

The law on bank activity № 7/99 and

According to the law the bank should consider as confidential all data, the facts and the circumstances, which steels are known to bank at rendering of services to the client or realisation of transactions. Confidential are considered as data about a condition of accounts and transactions. Law positions extend on officers of board,
59/01 Shareholders, workers of bank and other persons who in connection with the work in bank or rendering of services to bank get access to the confidential information.
Finland The law on credit institutes The law obliges any worker of bank or credit institute to keep as fiduciary received by it in the course of performance of the professional duties the information, concerning positions, personal circumstances of clients or other persons, their trading or business secrets, except for cases when persons whom this information concerns, will not resolve its disclosing.
France The special

The legislation

No.

The criminal and civil legislation

On employees and heads of banks a duty to keep the received information secret it is imposed as the criminal legislation — for infringement of "a professional duty╗ criminal punishment is provided, and the civil legislation which obliges to keep confidentiality concerning the received information. Positions of the criminal and civil legislation operate independently from each other.
The Czech

Republic

The special

The legislation

The banking secrecy mentions any mutual relations concerning interests of bank and their clients. A duty to keep the bank information secret the director is imposed on workers, managers,
The law on banks № 21/1992 Banks, both in the course of work, and after the termination of labour relations with bank. On occasion bank directing bodies can release the worker from a duty to store a banking secrecy.
Switzerland The special

The legislation

The federal law on banks and saving banks from November, 8th, 1934

The law forbids any who is the official, the worker of bank, the liquidator the commission agent of bank, the representative of the Federal bank commission, the employee or the official of the recognised auditor company to open any information on clients which became known for it as a result of realisation of the activity. The law forbids them even to give to the third parties acknowledgement, that for it any information, concerning clients is known. G razhdanskie courts and the more so — criminal, have the right to resolve to employees of banks and other persons to represent itself as witnesses and that, most to open a banking secrecy.
Sweden The special

The legislation

The law on bank activity from 1987

The legislation is established, that by the information, concerning personal mutual relations between the client and bank, cannot be opened to the third parties without the due legislative ground. In case of infringement of such obligation the bank can be awarded to repairing a loss of clients, and the employee who has admitted such infringement — is dismissed.

Banks in Sweden cannot even give the information, that such person

Is their client or was in the past.

The legislation and judiciary practice establishes a number of exceptions of a banking secrecy.

Estonia The special

The legislation

The law on credit institutes from 1999

According to the law any data which have become known credit institute, concerning a financial position, personal data, transactions, economic activities, business and trade secrets, the property rights or business of clients of credit institute or other credit institute are objects on which extends positions about a banking secrecy. Such information can be opened to the third parties only from the written approval of the client or on the basis of other positions of the law credit institutes

Speaking about the factors which have served by preconditions to change of the approach to understanding of a banking secrecy, it is necessary to stop on toughening in 21 century of an antiterrorist policy of the states.

One of consequences on September, 11th, 2001, made huge impact on a condition of a banking secrecy not only in the USA, but also all over the world, became acceptance of the USA the separate law regulating an order of information interchange under accounts and contributions of citizens of the USA, opened in foreign banks, and practically compulsory conclusion of the USA going in parallel with it with the strongest world powers, including with exhibiting countries of the European Union of bilateral agreements about information interchange. Signing of the given agreements provides information interchange, including making a banking secrecy: the information on the accounts opened by foreign citizens in other country, on movement of money resources under accounts and so forth Those countries which information under accounts and contributions of citizens of the USA refuse granting of the USA, get automatically to źthe black list╗ the USA. For banks of these countries hit in the given list upon means refusal of use of currency of the USA in the given country. And it essentially narrows a spectrum of services rendered by banks.

The politician of the USA in the field of a banking secrecy can name radical for following reasons.

First, the USA as one of the largest players in the international market of banking services upon acceptance of the internal law influences all modern world practically ex rights from the developed states to ignore it.

Secondly, the conclusion of the international agreements and ratification FATCA was an incitement to reciprocal requirements about information granting on the citizens who are put forward by the countries, accepted the given requirements. In itself information interchange between the countries is not a short story in [76] international law. For example, Organization activity on economic cooperation and development (further — OESR), one of which directions of activity is working out and introduction of standards on an exchange of the tax information between the state-participants OESR. On February, 13th, 2014 on official site OESR has been published Eдиный the international standard of automatic information interchange about the financial accounts, based on principles of the international automatic information interchange about tax bearers between credit establishments and the tax bodies established FATCA. The given standard is subject to introduction in more, than 60 countries, to the beginning of 2017. Thus, the scale set by the USA has laid down in a basis of the given innovations and as of today far is beyond existing agreements on information interchange.

Thirdly, according to the author, the policy of the USA is more directed not so much on struggle against terrorism, how many on enrichment of treasury at the expense of taxes arriving in it from citizens, whose accounts are opened in other countries. Earlier possibility of the taxation of the incomes received from deposits, opened in other countries was practically impossible. With change of a policy of the USA it became possible without the superfluous efforts undertaken from National tax service of the USA.

As to Russia for today law FATCA, some years being on consideration in Parliament of the Russian Federation, is not ratified for the several reasons.

First, last years 21 centuries of the relation of Russia and the USA have essentially become aggravated. With the war beginning in Ukraine a situation even more [77 [78]

It was aggravated. Therefore acceptance of the similar law in current conditions is improbable.

Secondly, at scientists and the legislator is not present till now a uniform position concerning ratification of the given law.

There are some positions contradicting each other.

Opponents consider, that ratification of similar agreements contradicts the Constitution of the Russian Federation and the national legislation regulating a banking secrecy, as a matter of fact, depriving the Russian Federation its financial sovereignty.

Supporters of signing of the agreement on information interchange and ratification FATCA say about disproportionately big possibilities opening for Russia on access and information use, about accounts and the contributions of citizens of the Russian Federation opened in territory of the USA, that besides it is favourable Russia from the point of view of replenishment of treasury by the taxes received from incomes from accounts opened in the USA. Also the important factor by consideration of the given question are the sanctions threatening to the Russian Federation in default from performance of requirements of the USA.

At present the legislator has gone on the second way, having passed quickly the Law on realisation of financial operations.

In the conditions of change of a legal regime of the information of the limited access in bank activity both to the state bodies, and banks it is important to keep loyalty and trust of clients and to prevent outflow of money from accounts and deposits physical and legal bodies. The given fact is constraining at carrying out named above actions. Banks and the state bodies should joint efforts to provide safety of the information transferred and received by them.

In connection with the aforesaid, the most obvious for today the tendency of development of a legal regime of the information of the limited access in bank activity can consider definition of the accurate list of cases and addressees of such information at simultaneous toughening of responsibility for its disclosure, both employees of banks, and employees of the state bodies which are addressees of the given information.

2.2.

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A source: Krutikova Darya Ilinichna. LEGAL REGIME of the INFORMATION of the LIMITED ACCESS. The dissertation on competition of a scientific degree of the candidate of jurisprudence. Moscow - 2015. 2015

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