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§ 2. Procedure of the admission of banks in system of insurance of contributions

On strengthening of the rights of investors and creditors of banks, perfection of tools of bank supervision in the course of financial activity of the state in the name of the authorised bodies Federal act acceptance «About insurance of contributions of physical persons in banks of the Russian Federation» [689] is directed.

Rigid requirements for banks on occurrence system of insurance of contributions are not represented excessive, do not testify to superfluous intervention of the state in bank business, and confirm objective necessity of social protection of contributions of the population in case of bankruptcy of banks, creations of certain system of warranting of contributions which according to the considered law has received the name of system of insurance of contributions though as the civil-law obligation in the given Federal act we do not meet classical insurance.

Pravoprimenitelnaja activity of Bank of Russia on selection of the credit organisations in system of insurance of contributions (CCB) assumed an estimation of quality of the organisation of activity in banks on such components, as control systems, risk-management, the internal control. To provide constant conformity to requirements SSV, it is necessary for banks to support appropriate quality of activity on the basic components [690 [691].

Definition of criteria for occurrence in system of insurance of contributions, carrying out of target checks of banks by inspection divisions of the Central bank of the Russian Federation, decision-making on the admission in system of insurance of contributions the Central bank of the Russian Federation which is carrying out supervision of activity of the credit organisations is represented, that vzaimouvjazannoe a statement in the Federal act «About insurance of contributions of physical persons in banks of the Russian Federation» questions of the organisation of system of insurance of contributions, delivery, stay and licence withdrawal on fulfilment of bank operations according to the Federal act «About the Central bank of the Russian Federation (Bank of Russia)» speaks about improvement of quality of powers of Bank of Russia in the field of licensing of bank activity and bank supervision, without mechanical increase in quantity of powers of Bank of Russia.

In item 44 FZ «About insurance of contributions of physical persons in banks of the Russian Federation» it is fixed, that the bank having the permission of Bank of Russia at date of coming into force of the law, admits to meeting requirements to participation in system of insurance of contributions at conformity to them to simultaneously following conditions: 1) if the account and the bank reporting admit Bank of Russia authentic; 2) if the bank carries out the obligatory specifications established by Bank of Russia; 3) if financial stability of bank admits Bank of Russia sufficient; 4) if the measures provided by item 74 FZ «About the Central bank of the Russian Federation (Bank of Russia), item 20 FZ« About banks and bank activity », items 3 FZ« About an inconsistency (bankruptcy) of the credit organisations «to bank are not applied, and also there are no bases for their application following the results of thematic inspection check. The account and the bank reporting admit Bank of Russia authentic in case simultaneously the account and the bank reporting correspond to federal acts, norms and the rules established by Bank of Russia, to own registration policy of bank and possible lacks or errors of a condition of the account or the bank reporting do not influence essentially an estimation of its financial stability.

For an estimation of financial stability of bank it agree ch. 4 items 44 FZ «About insurance of contributions of physical persons in banks of the Russian Federation» are applied corresponding indicators [692]. Financial stability of bank is estimated by Bank of Russia on the given group of indicators with definition on each of them of generalising result "well or"unsatisfactorily"and admits Bank of Russia sufficient in the presence of result"well"on all groups of indicators.

The similar approach of [693] definitions of banks corresponding to requirements to participation in system of insurance of contributions is promoted development substantial, by risk-focused of supervision of Bank of Russia, removal professional motivirovannogo judgements of Bank of Russia about activity of the credit organisation and its prospects, to achievement of the purposes of activity of Bank of Russia on development and strengthening of bank system of the Russian Federation, overall objectives of bank regulation and bank supervision on maintenance of stability of bank system of the Russian Federation and protection of interests of investors and creditors (item 3, 56 FZ «About the Central bank of the Russian Federation (Bank of Russia)»).

Work on consideration by Bank of Russia of petitions and statements for the appeal of decisions of Committee of bank supervision has been organised so that at any stage of consideration the Bank of Russia had the actual information on a financial condition of bank, observance of the obligatory specifications applied to it measures of influence by it, and also on presence of the bases for application of measures of influence [694]. Possibility to represent to Bank of Russia any additional information which, according to bank, could be considered at decision-making by Committee of bank supervision and the Chairman of Bank of Russia has been given banks. The bank of Russia had been provided collective nature of decision-making in which development all divisions of the supervising block of central office of Bank of Russia took part, and also territorial establishments of Bank of Russia.

The bank of Russia at an estimation of conformity of the credit organisations to requirements under the introduction into system of insurance of contributions considers the information of Federal service on financial monitoring. All information arriving from banks which are coming under to the obligatory control, and also on doubtful transactions finds application. Spheres of the basic attention of Bank of Russia at an estimation of conformity of banks to requirements to participation in system of insurance of contributions were the estimation of reliability of book keeping and the reporting, observance of obligatory specifications, a transparency of structure of the property of bank, quality of management and the internal control, quality of actives, own means (capital) of banks, correctness of formation of reserves, and also absence of the bases for application to bank of measures of influence. The committee of bank supervision of Bank of Russia during procedures of the control of banks on the introduction into system of insurance of contributions gave essential attention to execution of the legislation connected with counteraction to washing up and financing of terrorism by them. From the general number of the banks, done not pass the first stage, third has fallen to banks which have been dismissed in connection with failure to meet requirements of the legislation on washing up. It testifies to the close attention given by supervising body on the given direction rabo -

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You.

In time, established the Federal act, in Bank of Russia had been submitted petitions for removal of the conclusion by Bank of Russia about conformity to requirements to participation in system of insurance of contributions (further — petitions) 1150 banks, before having the licence of Bank of Russia for attraction to contributions of money resources of physical persons and on opening and conducting accounts of physical persons (as of June, 27th, 2004 the specified licence had 1183 ban - [695] [696] ka) [697]. Almost one and a half year it was required to Bank of Russia to reveal the most worthy representatives of domestic bank community and to entrust them work with private clients. On December, 30th, 2005 all procedures under the admission of banks in system of insurance of contributions (SSV) which urged to protect means of the population in case of an inconsistency of the credit organisations have been finished. Now investors of the bank which has passed in SSV, can count on a full covering of the deposit for the sum no more than 100 thousand rbl. However the next months the size of compensation will be increased to 190 thousand rbl., and since 2007 - to 280 thousand rbl. Thus, according to the agency head on insurance of contributions (ACB) A.V.Turbanova, by 2010 Russia can come nearer to level of the EU countries where the size of guarantees constitutes 20 thousand euro [698].

After two stages of selection of the credit organisations, the appeal of the negative conclusions and proceedings there was 931 bank though 1150 demands have initially been submitted. On a share passed in CCB 99,3 % from all deposits of the population are necessary (2,555 trln, rbl.), their actives constitute 94,6 % (8,898 trln, rbl.) all actives of bank system. It is remarkable, that in the summer of 2005 the first bank which has entered in SSV has lost the licence. And, as time and again declared in Bank of Russia, similar cases can repeat still: if any of banks will not correspond to the established requirements within three months on end, the regulator will forbid it to involve means of the population [699].

Selection in system of insurance of contributions started at the height of a bank credibility gap of 2004 and at once has caused weight of criticism from the party as the bankers specifying in bias and nonprofessionalism of employees of Bank of Russia, leading selection, and some financial analysts who have considered, that created CCB will not make the credit organisations more transparent and reliable for the population. However, how participants of the market concerned insurance system - this project became the most scale in the Russian bank system for the last years, - hardly what other financial tool can show similar total result, and even in foreseeable prospect. After all from coming into force of the law on insurance of contributions in the beginning of 2004 volume of means of private persons in banks has increased on 64 % - with 1,5 trln, to 2,46 bln. rbl. That is why "health" of the Russian banks - a problem, for a long time already become the basic for the state as high-grade bank reform in the country it has not been spent, and strengthening of a role of the State Banks in sector at all does not promote its development.

Actual problem is the right to the appeal pravoprimenitelnyh certificates of Bank of Russia in sphere of the admission of banks in system of insurance of contributions [700 [701] [702].

So, according to item 12 of item 45 FZ «About insurance of contributions of physical persons in banks of the Russian Federation» bank within a month from the date of removal

Bank of Russia of the negative conclusion following the results of consideration of the repeated petition has the right to appeal against this conclusion in Committee of bank supervision of Bank of Russia, and in case of acknowledgement of the negative conclusion by it repeatedly to appeal to the Chairman of Bank of Russia within a month after such acknowledgement. Committee of bank supervision of Bank of Russia and the Chairman of Bank of Russia consider the statement of bank for the appeal of the negative conclusion in a month.

Hence, banks the insurance of contributions not accepted in system are obliged to pass two stages of the appeal of refusal in the Bank of Russia, including its Chairman. According to the Chairman of Bank of Russia S.M.Ignatyev, by it it is considered about half from 100 appeals of the banks, done not pass selection in system of insurance of contributions. The positive decision was accepted concerning four banks. After a verdict of Bank of Russia to banks remains only has legal proceedings with a regulator [703]. After that banks have the right to address in arbitration court. As affairs about contest by banks of the conclusions about conformity to requirements to participation in system of insurance of the contributions, connected with realisation of the economic analysis of activity of bank, are disputes of economic character jurisdiction of vessels of the general jurisdiction do not concern [704 [705] by the nature.

Judiciary practice concerning the appeal develops neodnoznach -

f\1

But. On December, 8th FAS MO has satisfied the appeal for review of Bank of Russia and has cancelled the decision which has been taken out in favour of Russian bank of business cooperation (RBDS). RBDS has appealed in arbitration court of Moscow against refusal of Bank of Russia to accept it in CCB and on June, 13th has carried case though in CCB and has not entered, despite giving in Bank of Russia of the repeated petition. Now the cassation has cancelled this decree, having specified, that «is established by the law administrativ -

go

nyj an order of the appeal of the negative conclusion of Bank of Russia ». FAS MO has come to conclusion, that before passage of all stages of reception in CCB the bank cannot address in court.« In the law on insurance of contributions the administrative procedure of acceptance of banks in CCB is provided and the appeal of refusals, - considers the vice-president of bank committee of the State Duma P.Medvedev. - according to the logic of the law, all stages of this procedure it is necessary to pass before to address in court ». However representatives of banks - participants of litigations with Bank of Russia, underline, that inconsistent decisions do not allow to create system practice of application of the law on insurance of contributions. And it does not allow to solve a question when banks have the right to appeal against refusals of Bank of Russia

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In court.

The agrarian and industrial complex of the Russian Federation takes away on giving of statements three months, and the administrative procedure in Bank of Russia can occupy four months. References of Bank of Russia in court on the admission banks of three-monthly term, according to G.Tosunjana, «looked strange enough and not convincingly, as the refusal appeal in

p L

The Central Bank occupied considerable time ». Therefore the right to a reference to the court arises from the moment of refusal of the Chairman of Bank of Russia, instead of since the moment when the bank has received the basic decision. The law directly does not specify, when the bank has the right to address in court, and it became the reason of contradictions in judiciary practice. Certainly, to avoid a problem perfection of administrative procedures, statutory contributions about insurance would allow. According to the first vice-president of Bank of Russia A.Kozlova« banks I have the right to challenge the Central Bank decision, but such not so it is a lot of. The majority of banks behave easy and reasonably and are engaged in correction of existing problems. The court after all has no powers on acceptance of banks in system of insurance of contributions ». From court it is required to estimate how much motivirovanny Bank refusals Poc - [706 [707] [708] [709] these in inclusion of banks in CCB. The court can satisfy the complaint, having obliged committee of bank supervision of the Central Bank to re-examine the statement of bank for the introduction in CCB [710]. However there are no guarantees, that the repeated statement of bank will satisfy Bank of Russia. For example, bank "Майма" business. As representatives of Bank of Russia declared in court, the bank regularly broke requirements about the organisation of credit work. As a result of the spent check the bank has received the instruction about doformirovanii these reserves. The instruction has not allowed bank to enter in SSV, therefore it was considered by court. The court has satisfied its complaint, having obliged committee of bank supervision of Bank of Russia to re-examine the statement of bank for the introduction in SSV. The court has not obliged Bank of Russia to satisfy bank "Майма" statement. Moreover, the court did not begin to nullify the instruction, taken out to bank that presumes the Central Bank to take out once again the negative conclusion [711].

In total claims to Bank of Russia have submitted 15 banks from 200, not entered into system of insurance of contributions [712]. For example, bank "Пушкино" has submitted the claim to a regulator and has achieved cancellation of the order on an interdiction of work with private contributions.

On a site of Bank of Russia there was a new page which will interest investors of the gone bankrupt or liquidated banks by means of the new appendix on a portal of Bank of Russia [713]. They can direct there the information on defects and infringements in work of acting administrations and competitive managing directors. References will be considered by a management of the Central bank of the Russian Federation or department of licensing of activity and financial improvement of the credit organisations [714]. For example, in Canada it is planned to create Agency of financial consumers which will prosecute subjects of informing of consumers on their rights in sector of financial services and to watch execution of federal acts on protection of the rights of consumers. It is planned to create also independent body - Service upol - nomochennogo on financial questions to which the duty on consideration of complaints of private persons and the small-scale business enterprises in the relation is assigned

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Wrongful acts of financial institutions.

The board of directors of Bank of Russia from the date of coming into force of the law on payments of Bank of Russia under contributions to the banks-bankrupts which have not entered into system of insurance of contributions, has made of the decision on realisation of payments of 25,7 thousand investors, has informed department external and public relations of Bank of Russia. It is a question of contributions to 18 banks-bankrupts for a total sum of 511 million roubles. As of December, 14th, 2005 of 20,9 thousand investors have received payments of Bank of Russia at a rate of 445,5 million roubles.

It is necessary to tell, that licence withdrawal from banks has not an adverse effect on a condition of bank system. On the contrary - it restores its fair name. According to A.V.Turbanova «licence withdrawal at MBER is not failure of system of warranting of contributions. On the contrary, it has visually shown its work, has once again shown, for what it was created» [715 [716] [717].

Thus, the analysis of procedure of the admission of banks in system of insurance of contributions shows necessity of an optimum combination of administrative and judicial variants of protection of the rights of banks, increases of a transparency of acceptance pravoprimenitelnyh certificates of Bank of Russia concerning functioning of system of insurance of contributions.

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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

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