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§ 2. Problems of the organisation-legal form of the Central bank of the Russian Federation

FZ about the Central Bank of the Russian Federation fixes, that the Central bank of the Russian Federation is the legal body. Proceeding from this norm of the law, some scientists believe, that the Central bank of the Russian Federation should have organizatsionnopravovuju the form, as well as other legal bodies, and it should correspond to norms of the Civil code of the Russian Federation [33 [34], regulating these questions as in sphere civil-law regulation GK the Russian Federation has a leading position in relation to

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To other laws (item 2 of item 3 GK the Russian Federation).

J.A.Gejvandov considers, that the Bank of Russia is the noncommercial organisation existing in the form of establishment [35].

For definition of the organisation-legal form of Bank of Russia the purposes and character of its activity, and also feature of functions carried out by it have crucial importance. Depending on the purpose for the sake of which realisation the legal body is created, it can be carried to commercial or noncommercial legal bodies. If the legal body is created by its founders with a view of reception of profit on realisation of the activity by it such legal body will be recognised by commercial (item 50 GK the Russian Federation). The organisations which have no extraction of profit as a main objective of activity and do not mete the received profit between participants (item 50 GK the Russian Federation, Federal act item 2 «About noncommercial, the organisations» [36]), admit the noncommercial organisations.

J.A.Gejvandov writes, that main objectives of activity of the Central bank of the Russian Federation, directly connected with its legal status, protection and maintenance of stability of rouble are; development and strengthening of bank system of the Russian Federation; maintenance of effective and uninterrupted functioning of payment system (item Z FZ about the Central Bank of the Russian Federation). The specified purposes are connected with management of monetary and credit and bank systems, increase of their efficiency and reliability and, certainly, include protection of the rights and legitimate interests of all participants of economic relations. Therefore they, undoubtedly, are aimed at achievement of public benefits and completely correspond to the purposes of the noncommercial organisations. According to item item 2 2 FZ «About the noncommercial organisations» the noncommercial organisations can be created for achievement of variety of the purposes, including in the administrative purposes for protection of the rights, legitimate interests of citizens and the organisations, and also in other purposes directed on achievement of public benefits. Hence, the Bank of Russia can be carried to noncommercial legal bodies.

According to the legislation the Bank of Russia is created by the proprietor - the Russian Federation. Creating Bank of Russia, the proprietor (Russian Federation) has allocated with its charter capital at a rate of 3 mlrd, roubles (item 10 FZ about the Central Bank of the Russian Federation). On it financing of the Central bank of the Russian Federation from the proprietor (Russian Federation) has been ceased. Thus, in a case with Bank of Russia the proprietor finances the legal body created by it partially, only at its creation. On sense of item 1 of item 9 FZ «About the noncommercial organisations» such order of financing is quite admissible for establishment.

As the noncommercial organisation created in the form of establishment, the federal property can belong to the Central bank of the Russian Federation only on the operational administration right (item 296 GK the Russian Federation, item 1 of item 9 FZ «About the noncommercial organisations»). According to GK the Russian Federation under an operational administration is understood realisation by establishment of the right of possession, using and the order concerning the property fixed to it in limits, statutory, according to the activity purposes, tasks of the proprietor and property appointment. The proprietor of the property fixed to establishment, has the right to withdraw property excessive, not used or used not for the designated purpose and to dispose of it at own discretion.

However fixed in FZ about the Central Bank of the Russian Federation the legal status of property of Bank of Russia and a legal status of the Most central bank of the Russian Federation provide some exceptions of the general rule concerning a mode of the property which is in an operational administration.

The bank of Russia carries out powers on possession, using and the order property of Bank of Russia, including gold and exchange currency reserves of Bank of Russia according to the purposes and in the order established by the specified law. Withdrawal and encumbrance by obligations of the specified property without the consent of Bank of Russia are not supposed (item 2 FZ about the Central Bank of the Russian Federation).

Features in a part, concerning orders the property are inherent in bank of Russia. According to item 298 GK the Russian Federation if to establishment is accorded to carry out a right activity bringing in incomes the incomes received from such activity, and the property got at the expense of these incomes arrive in the independent order of establishment and are considered on separate balance. FZ about the Central Bank of the Russian Federation the duty of Bank of Russia is established to list in the federal budget of 50 % of actually received profit following the results of each year.

One more feature of a legal status of the Central bank of the Russian Federation consists in absence of the subsidiary liability of the state under obligations of the Central bank of the Russian Federation in case of insufficiency of means of the last.

J.A.Gejvandov proves possibility of an establishment of a special legal status for Bank of Russia (including mode of property which he owns) the reference to item 3 of item 120 GK the Russian Federation and item 3 of item 9 FZ «About the noncommercial organisations» which suppose presence of features of a legal status of separate kinds of state and other establishments if corresponding features are defined by the law or other legal act.

But, first, GK the Russian Federations and FZ «About the noncommercial organisations» speak about possibility of an establishment of features of a legal status for separate kinds of establishments, instead of separately taken, unique establishment. Secondly, GK the Russian Federations and FZ «About the noncommercial organisations» suppose possibility of definition of features of the established mode, instead of its radical change. The probability of occurrence of disputes on will be always high, whether there were established features for the frameworks defined GK the Russian Federation and FZ «About the noncommercial organisations».

It is not considered, that the basic function of the Central bank of the Russian Federation is protection and maintenance of stability of rouble so, the Bank of Russia should be independent. The establishment is the weakest legal body as much as possible dependent on the proprietor. The bank of Russia cannot be considered as the federal official body which status is similar to the status of the federal institutions created and functioning in system of the executive authority. Such characteristic mismatches its legal nature as independent public authority.

Participants of the discussion organised by Nikitinsky club together with the union of lawyers on a theme «the Constitutional economy and the status of the Central bank of Russia», have expressed deep concern in connection with attempts to change the status of Bank of Russia, having made its official body. In their opinion, it will inevitably lead to destabilization of national currency, further dollarizatsii economy, to growth of inflation and social pressure, and also possible loss of gold and exchange currency reserves [37].

There are also other points of view rather organizatsionnopravovoj forms of the Central Bank of the Russian Federation.

G.A.Tosunjan considers, that the Central bank of the Russian Federation is the commercial organisation and there should be that as it is obliged to carry out the expenses at the expense of the incomes [38]. Thus the organisation-legal form of Bank of Russia - the state unitary enterprise. According to item 1 of item 113 GK the Russian Federation the unitary enterprise admits the commercial organisation which has been not allocated with the property right to property fixed to it of the proprietor. That is the Central bank of the Russian Federation, ustavnyj the capital and which other property are the federal property according to item 2 FZ about the Central Bank. The head of the unitary enterprise, according to item 4 of item 113 GK the Russian Federation, is appointed the proprietor. The chairman of Bank of Russia is appointed and dismissed by the State Duma (item 14 FZ about the Central Bank of the Russian Federation). According to item 5 of item 113 GK the Russian Federation the unitary enterprise does not bear responsibility under obligations of the proprietor of property. As follows from the item 2 FZ about the Central Bank of the Russian Federation, Bank of Russia itself answers under the obligations and does not bear responsibility under state obligations, as proprietor of the property fixed to it. Further G.A.Tosunjan specifies, that the property belongs to Bank of Russia on the right of economic conducting. It proves to be true the analysis of the item of item 294, 295 GK the Russian Federation in which the rights of the proprietor concerning the property which is in economic conducting [39] reveal.

At the same time the Bank of Russia has no charter, it has not the right to carry out operation with the real estate (item 3 of item 49 FZ about the Central Bank of the Russian Federation) whereas item 2 of item 295 GK the Russian Federation allows to make to the unitary enterprises any transactions with the real estate and to realise it with the permission of the proprietor.

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The central bank of the Russian Federation cannot be the commercial legal body as profit reception is not the purpose of its activity (item Z FZ about the Central Bank of the Russian Federation).

L. G.Yefimov notices, that in FZ about the Central Bank of the Russian Federation there is an internal contradiction between norm of item 3 as which affirms, that profit reception is not the purpose of Bank of Russia, and norm of item 2 where the duty is assigned to the Central Bank of the Russian Federation to carry out the expenses at the expense of own incomes. L.G.Yefimov believes, that the Bank of Russia is the state unitary enterprise based on the right of economic conducting. In its opinion, the Bank of Russia is the commercial organisation, is engaged in enterprise activity, receives from it the profit which part is transferred into the budget [40].

Thus, the statement that the Bank of Russia is the unitary enterprise, is debatable.

Subsequently G.A.Tosunjan comes to conclusion, that the property of Bank of Russia does not answer signs, as the property belonging to the subject on the right of economic conducting, and the property belonging to the subject on the right of an operational administration. The property of Bank of Russia it also is not, as the specified property - the federal property. The bases of occurrence (acquisition) of the property right are pravoporozhdajushchie juridical facts which are called also as property titles. Title possession is the possession of a thing based on any right (a legal ground or a title), following of the corresponding juridical fact.

In a case with the Central bank of the Russian Federation such juridical fact is acceptance and coming into force FZ «About the Central bank of the Russian Federation (Bank of Russia)». The central bank of the Russian Federation is the title owner of the property belonging to it which specific feature is its duty to carry out competences of possession, usings and orders the specified property not in the interests, and in interests of the state or, more precisely, societies as a whole [41 [42].

V.A.Rahmilovich and V.S.Minin suggest to consider the Central bank of the Russian Federation as the state corporation. FZ «About the noncommercial organisations» has been added by article of the following maintenance:

«Article 7.1. The state corporation

!.gosudarstvennoj corporation the noncommercial organisation not having membership founded by the Russian Federation on the basis of a property payment and created for realisation of social, administrative or other socially useful functions admits. The state corporation is created on the basis of the federal act.

The property transferred to the state corporation by the Russian Federation, is the property of the state corporation.

The state corporation does not answer for obligations the Russian Federation, and the Russian Federation does not answer for obligations the state corporation if the law providing creation of the state corporation, does not provide other.

2. The state corporation uses property for the purposes defined by the law, providing creation of the state corporation. The state corporation can carry out enterprise activity only so far as as it serves achievement of the purposes for the sake of which it is created, and corresponding to these purposes. The state corporation is obliged to publish annually reports on use of the property according to the law providing creation of the state corporation.

3. Features of a legal status of the state corporation are established by the law providing creation of the state corporation. For creation of the state corporation it is not required the constituent instruments provided by article 52 of the Civil code of the Russian Federation.

In the law providing creation of the state corporation, the name of the state corporation, the purpose of its activity, a place of its finding, a management order by its activity (including controls of the state corporation and an order of their formation, an order of appointment of officials of the state corporation and their clearing), an order of reorganisation and liquidation of the state corporation and an order of use of property of the state corporation in case of its liquidation »should be defined.

Thereupon scientists believe, that the made changes in FZ «About the noncommercial organisations» have the direct relation to Bank of Russia, as the positions of the specified law characterising such organisation-legal form of legal bodies as «the state corporation», practically coincide with a legal status of Bank of Russia.

According to J.M.Makarovoj, the Bank of Russia should be carried to the noncommercial organisations as profit reception is not a main objective of activity of Bank of Russia, and the received profit is not meted between participants, and it is necessary to give it according to the Federal act «About the noncommercial organisations» organizatsionnopravovuju the form of the state corporation. Hence, the Bank of Russia represents the state corporation with the special constitutional status, founded by the Russian Federation for realisation of protection and maintenance of stability of the rouble, allocated

The exclusive right of issue to territories of the Russian Federation and carrying out the functions irrespective of public authorities [43 [44].

However position of article FZ «About the noncommercial organisations» that the property transferred to the state corporation, is its property, excludes possibility of reference of Bank of Russia to this organisation-legal form. Ustavnyj the capital and other property of Bank of Russia are the federal property.

The question on what organisation-legal form can be applied to Bank of Russia, remains debatable. Thus many scientists start with that precondition, that FZ about the Central Bank of the Russian Federation should be brought into accord with GK the Russian Federation. The given position does not find a substantiation in the Constitution of the Russian Federation, that repeatedly underlined the Constitutional court of the Russian Federation. In Definition from February, 3rd, 2000 № 22-0 Constitutional court of the Russian Federation has specified: «by the Constitution of the Russian Federation it is not defined and the hierarchy of certificates in their one kind, in this case — federal acts cannot be defined. Any federal act owing to article 76 of the Constitution of the Russian Federation does not possess in relation to other federal act bolshej a validity». The specified position extends and on the Civil code of the Russian Federation. Thus, it is necessary to recognise illegitimacy of the statement of a question on necessity of reduction FZ about the Central Bank of the Russian Federation in conformity with the Civil code of the Russian Federation [45].

Attempt to establish a priority of norms GK the Russian Federation over norms FZ about the Central Bank of the Russian Federation mismatches also to the international experience of regulation of the status and activity of the central banks — one of the world countries does not admit

Absolute priority of the civil legislation before the law on the central bank. Norms of the civil legislation regulate activity of the central banks only in those countries in which the central banks are founded as joint-stock companies (Austria, Hungary, Belgium, Greece, the Netherlands, Switzerland), and only in case any relations are not settled by laws on the central banks. In the same countries in which the central banks are publichnopravovymi the organisations (for example, the USA, Germany, Spain, Finland and other countries) or have the special status which is distinct from the status of usual legal bodies (for example, France, Japan, New Zealand, Bulgaria and other countries), norms of civil law concerning regulation of activity of the central banks are not applied.

Thus, the international experience shows, that all over the world in the course of standard regulation of activity of the central banks the priority remains behind special laws — laws on the central banks, and norms of the civil legislation [46] only are on occasion applied.

Complexities in definition of the organisation-legal form of Bank of Russia arise because the concept of the legal person is reduced basically to participation in civil-law relations. It is natural, for occurrence of the given concept has been caused by the certain economic reasons - necessity of participation of associations of physical persons for the civil circulation. Therefore and now, when it is spoken about the legal body, at once there is a first representation about it as about something connected with the civil circulation in sphere of the goods and services. It concerns and the Russian science, the Russian legislation.

At the same time in the Russian and foreign legislation such legal bodies to whom classifications on the basis of private law can be applied only partially are called or are completely not applicable. They are legal bodies of the public law. Among such legal bodies in constitutional, administrative, civil law of foreign countries subjects of federation, municipal unions, state and the municipal authorities, some bodies of the state and the local government, recognised as the law legal bodies of the public law, public associations of the public law are called the state.

In works of the Russian experts in administrative law it is sometimes said, that legal bodies [47 [48] can be subjects of jural relations under administrative law, the truth, a question on, whether are such persons legal bodies of the public law, is not considered. Sometimes administratively ™ along with other signs of enforcement authority notice, that the enforcement authority is legal

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The person, that is possesses the civil legal capacity.

In the legislation of Russia a word-combination «the legal body of the public law» is not used, but public authorities and local government are called in regulatory legal acts as legal bodies or possessing corporate franchises.

Idea about body of the state (local government) as the legal body - a step forward in development of the concept of the legal person, transition from public establishment to public authority body. However administrativisty, neither political scientists, nor constitutionalists do not analyze this phenomenon from a position of a new category - the legal person

The public law (works of other sort about public establishments and state bodies it is published much) [49 [50].

In the Russian literature the attention to the legal body of the public law was turned not by constitutionalists or is administrative ™, and jurists.

G.F.Shershenevich used this term, saying, that on the first place among «legal bodies of the public law» there is a state - treasury.

Modern researchers-jurists believe, that the state, subjects of the Russian Federation, municipal unions and authorities on the legal nature are legal bodies of the public law who can be allocated by the civil legal personality, and together constitute subspecies of legal bodies - a category «legal bodies of the public law». The civil legal personality of legal bodies of the public law has the limited character whereas, proceeding from the purposes of creation and activity legal bodies of the given subspecies can carry out enterprise activity only so far as as it serves achievement of the purposes for the sake of which they are created [51].

However basically conclusions are reduced to that really there are the public formations which are legal bodies, but problems of the legal person of the public law as special category are not discussed. Dispute is led basically round questions: how much there correspond public formations to civil signs of the legal person and whether are bodies of the state legal bodies.

Such organisation-legal form, as the legal body of the public law, well-known to the bank right of many foreign countries. For example, in §2 Bundesbankgesetz (the Law on German federal bank) it is told: «Die Deutsche Bundesbank ist eine bundesunmittelbare juristische Person des oeffentlichen Rechts» (the German federal bank is directly federal legal body of the public law) [52]. The law «About an autonomy of Bank of Spain» provides, that the Bank «is institute of the public law which possesses corporate franchises and the full legal capacity in sphere public and private law» [53 [54].

According to O.M.Olejnik, addition of already known concept of the legal person with a sign of public character of activity should introduce in the legal characteristic:

- Openness and availability of the information on activity of the given subject, certainly, with the known limits established legislatively;

- The liability for control and the accountability of the given subject to representative authority bodies;

- Supervised in the form of preliminary, instead of the subsequent control financing of activity of this subject;

- Investment of the given subject with the duties, which performance is necessary for achievement of the purposes of a society.

V.E.Chirkin defines following characteristics of concept «the legal body of the public law»:

1. The legal body of the public law on the origin and the basic quality - public formation. Its "civil" properties if they are, are not the cores in its legal status.

2. It has a special special-purpose designation: realisation of public interests. The legal body of the public law has not the right to pursue private interests of the members by use of powers belonging to it or property.

3. Legal bodies of the public law possess imperious powers. They have discretionary character, that is decisions of the legal person of the public law, accepted by it at discretion, but within the law, extend on the third parties.

4. Legal bodies of the public law are carriers of the rights and duties of public character. The rights and duties of public character act as power, that is, having the rights, the legal body of the public law is obliged them to realise for it should carry out public authority in ordered to it the law volume and forms.

5. The legal body of the public law always has property (without a material basis its activity is hardly possible). Such property seldom is on the property right. The property of the legal person of the public law (and in it the main thing consists) is used not for profit extraction, and for realisation of its powers (competence).

6. The legal body of the public law is created special by: on the basis of a recognition already existing the phenomena (state) or by organizational procedure use (the edition of the corresponding normative act).

7. The legal body of the public law not always has the charter. Not always it requires the state registration, but is always created and operates on the basis of the certain legal act. For example, many legal bodies of the public law operate on the basis of laws on them.

8. The autonomy of the legal person of the public law can be enough wide (it is defined at its creation), can be narrow,

But if this formation-body - the legal body certain degree of an autonomy always is.

9. Responsibility of the legal person of the public law in the basis has public character.

10. At relations of legal bodies of the public law to some extent and the form there is a hierarchical beginning. It is connected with imperious elements of character of the legal person [55].

In our opinion, the resulted characteristics are inherent in the Central bank of the Russian Federation. Thus, the optimum organisation-legal form which could reflect specificity of a legal status of Bank of Russia, it is necessary to consider a category of the legal person of the public law.

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A source: CHEBYKINA NATALIA REMOVNA. the CENTRAL BANK of the RUSSIAN FEDERATION AS PUBLIC AUTHORITY In DENEZHNOKREDITNOJ And BANK SPHERES (financially-legal research). The dissertation on competition of a scientific degree of the master of laws. Omsk - 2006. 2006

More on topic § 2. Problems of the organisation-legal form of the Central bank of the Russian Federation:

  1. § 2. The organisation of clearing settlements in system of functions of the Central bank of the Russian Federation as body of state regulation of bank activity and its legal bases.
  2. CHAPTER 2. LEGAL ACTS AS THE FORM OF REALIZATION OF THE COMPETENCE OF THE CENTRAL BANK OF THE RUSSIAN FEDERATION
  3. CHAPTER 2. LEGAL CERTIFICATES AS the FORM of REALIZATION of the COMPETENCE of CENTRAL BANK of the RUSSIAN FEDERATION
  4. § 2. Functions of the Central bank of the Russian Federation at the present stage of development of the Russian state: the basic problems of an establishment and realisation
  5. § 2. Functions of Central bank of the Russian Federation at the present stage of development of the Russian state: the basic problems of an establishment and realisation
  6. the Head І. The General characteristic of a legal status of the Central bank of the Russian Federation (Bank of Russia)
  7. § 1. Concept, signs and legal value of legal certificates of Central bank of the Russian Federation
  8. § 4. Requirements to legal certificates of Central bank of the Russian Federation
  9. § 4. Requirements to legal acts of the Central bank of the Russian Federation
  10. § 2.1. FEATURES LEGAL TO POSITIONS OF FUNCTIONS OF THE CENTRAL BANK OF THE RUSSIAN FEDERATION
  11. § 1. The central bank of the Russian Federation as public authority in monetary and credit and bank spheres
  12. CHAPTER 5. MODERN PROBLEMS OF PERFECTION PRAVOTVORCHESKY AND PRAVOPRIMENITELNOJ ACTIVITY OF THE CENTRAL BANK OF THE RUSSIAN FEDERATION