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THE CONCLUSION

The basic theoretical conclusions formulated in the present dissertational research, are reduced to the following.

1. The central bank of the Russian Federation irrespective of others

Public authorities carries out the constitutional function of maintenance and protection of stability of rouble.

The constitutional bases of independence of the Central bank of the Russian Federation have received development in the current legislation. According to item 2 of the Law on Bank of Russia of function and the powers provided by the Constitution of the Russian Federation and the given federal act, Bank of Russia carries out irrespective of other federal public authorities, public authorities of subjects of the Russian Federation and local governments. Validity and logicality of an establishment of the given rule is caused by that under the economic maintenance and the legal form of power of the Central bank of the Russian Federation realisations of the constitutional function are subordinated. Stability of national currency is provided with the Central bank of the Russian Federation the various interconnected levers among which it is possible to allocate

Refinancing of the credit organisations, regulation of their liquidity, release of bonds, currency interventions, establishment of the unified rules and forms of calculations etc. Thus, not only issue of money resources, but also currency regulation, and exchange control, supervision of activity of the credit organisations, and other functions of Bank of Russia are directed on maintenance of protection and stability of rouble as

The constitutional function of the Central bank of the Russian Federation.

2. In work the legal status of Bank of Russia from positions of the financial right as the body which is carrying out bank regulation is investigated. Bank regulation, certainly, is area of the public financially-legal influence which purpose is rendering of assistance to the decision of nation-wide problems. Thus in the dissertation is administrative-legal aspects, proceeding from their interaction with financially-legal directions of dissertational work were considered.

The bank of Russia, proceeding from its functions, has operating influence on bank system and possesses powers necessary for it, including the right of application of the state compulsion and attraction of infringers to responsibility. In the dissertation the expediency of preservation of the basic powers of Bank of Russia as meeting requirements of a present stage ekonomikofinansovogo country positions is proved.

The analysis has allowed to define Bank of Russia as the public authority of a special sort which was not belonging to one of its branches, carrying out the government, bank regulation and bank supervision in sphere of functioning of a monetary and credit system. Exclusiveness of the competence of Bank of Russia and special character of its activity cause investment with its state-imperious powers: regulation of monetary streams, prudentsialnoe

Regulation and prudentsialnyj supervision assume possibility of application of sanctions in a case when legal requirements are not observed voluntary. Special character of activity of Bank of Russia investment with its right of the edition of normative acts speaks also.

Carried out by the Central bank of the Russian Federation activity on fulfilment of concrete transactions is caused by necessity of achievement of the public purposes of the state scale for sphere bjudzhetnofinansovoj and a monetary and credit policy, formulated in federal acts about the federal budget for current year, messages of the President to Federal assembly of the Russian Federation, statements of the Government of the Russian Federation and the Central bank of the Russian Federation for economic policy for the certain period, the Basic directions of a monetary and credit policy till the next year, soglasuemyh the Central bank of the Russian Federation with the President of the Russian Federation, the Government of the Russian Federation, the State Duma of Federal assembly of the Russian Federation.

3. Definition of concept of legal acts of the Central bank of the Russian Federation should start with the general concept of legal acts of the state and management legal acts. Being one of kinds of legal acts of bodies of the state, legal acts of the Central bank of the Russian Federation have the general lines of legal acts of the state bodies. However the features reflecting specificity of bank regulation, as special kind of the state activity are peculiar to them also.

In work following characteristic signs of legal acts of the Central bank of the Russian Federation are allocated:

- Represent the decision prepared and accepted by established rules of administrative process (manufacture on acceptance of standard legal acts of Bank of Russia; administrativnodogovornogo manufactures; litsenzionno-allowing manufacture); jurisdiktsionnogo process (procedure of realisation of measures of precautionary character and presekatelnogo character; procedures of application of regenerative measures, measures of financially-legal responsibility);

- Are published by the Central bank of the Russian Federation on the basis of the law within legislatively established competence of area denezhnokreditnyh relations; should not contradict federal acts in this connection have subordinate legislation character, standard legal acts of Bank of Russia represent sources of the Russian financial right in a considerable part; are mainly the tool of operative influence on public relations, are directed, mainly, on the decision of current problems in sphere of financial activity of the state;

- Appropriate registration as legal document is its written form;

In them legally imperious wills corresponding to state-imperious powers of the Central bank of the Russian Federation are shown; they express its imperious commands in the field of monetary and credit relations, are obligatory to execution by subjects in which address they are taken out, have official character as taken out by the state body in the field of monetary and credit relations;

- Represent an element of the legal form of state regulation of monetary and credit relations in sphere of financial activity of the state and realisation of a financially-legal policy, a legal life in the field of monetary and credit relations.

4. Legal acts of Bank of Russia contain following elements of legal system - legal rules, individual instructions, interpretatsionnye commands, independent decisions of persons.

The role of legal acts of the Central bank of the Russian Federation is shown in legal practice not only Bank of Russia, but also bodies of the legislative, executive and judicial authorities that finds reflexion in following directions:

- Legal acts of the Central bank of the Russian Federation are legal means of intersystem state regulation of bank activity; they represent itself as juridical facts, i.e. are actual the bases for formation of monetary and credit legal relations;

- Standard legal acts of the Central bank of the Russian Federation establish, change or cancel rules of law, regulate the public relations developing in sphere of bank activity; take the important place in system of sources of the financial right; can form the legal and actual basis for preparation and the edition of other certificates;

- Legal acts of the Central bank of the Russian Federation are legal documents, proofs in legal process, the major condition for realisation of those or other actions, and also for real action of other legal acts and realisation of the rights and freedom physical and legal bodies (in the specified aspect especially it is necessary to note the importance of such certificate of Bank of Russia as the Basic directions of a uniform state monetary and credit policy).

5. Functions of legal acts of the Central bank of the Russian Federation express their essence, character of influence on public relations in monetary and credit sphere and are directed on achievement of the purposes defined in these certificates.

Following functions are inherent in normative acts of Bank of Russia: reguljativnaja, guarding, the state orientation of the participant of a public life in the social validity, the state estimation of various variants of behaviour of subjects of law, criterion function.

Pravoprimenitelnye certificates of Bank of Russia carry out following functions: pravoobespechitelnuju, individual regulation

Public relations, concrete definitions of norms in the course of right application.

To specific functions of certificates of interpretation carry kosvennoreguljativnuju and obespechitelnuju functions which are characteristic and for interpretatsionnyh certificates of the right of Bank of Russia.

Contractual certificates of Bank of Russia carry out pravorealizatsionnuju, structurally-organizational functions, function of the coordination of interests, is state-obespechitelnuju, orientatsionno-stimulating.

In the dissertation the maintenance of the mentioned functions reveals.

Vospitatelno-ideological function which consists that is especially allocated, influencing participants of legal relations, legal acts of Bank of Russia promote formation of lawful behaviour in the field of monetary and credit relations, develop a competition in the bank environment and expand kinds of bank services, thereby promote achievement of the social and economic purposes of development of a society, that in modern conditions has got a special urgency.

6. Legal acts of the Central bank of the Russian Federation only then will carry out the mission when will receive wide application in practical activities of Bank of Russia and the credit organisations, positions containing in them are executed or carried out. In this connection the special urgency is got by a question on the requirements shown to legal acts of Bank of Russia.

To the right certificate of Bank of Russia it is offered to understand standard conditions at which presence the legal act will be lawful as requirements and to be equitable to interests of bank activity. The legal act of the Central bank of the Russian Federation should possess a validity, that is its ability to represent itself as the legal form of realisation of the competence of Bank of Russia and completely to correspond to its problems, the purposes and functions. Legality of legal acts of Bank of Russia should be provided at all stages of their preparation, acceptance and action.

In the dissertation the following complex of requirements to which there should correspond procedure of the edition of legal acts of the Central bank of the Russian Federation is developed:

- Legal acts of the Central bank of the Russian Federation should not contradict following purposes: maintenance of stability of bank system and protection of interests of investors and creditors to contradict Constitutions of the Russian Federation, to international treaties, federal acts;

- The central bank of the Russian Federation should accept the legal act only within the competence provided by the Constitution of the Russian Federation and federal acts;

- Legal acts of the Central bank of the Russian Federation should be published at observance of is standard established order of its preparation, the edition, the state registration, coming into force and publication;

- The structure of the project of the legal act is defined preliminary and should provide logic development of a theme of legal regulation and its discussion, and in its maintenance the order of its introduction into action where date or the moment of the introduction of the certificate enter into action (from the date of signing, from the date of official publication, since the moment specified in the certificate), the period (duration) of its action (instructions of calendar period of validity of the certificate, official cancellation of the certificate, execution of instructions containing in it, the termination of circumstances for which reason the certificate has been accepted, other circumstances) is underlined;

- Legal acts of the Central bank of the Russian Federation of the Russian Federation should be expedient, that is in them it is necessary to define and specify accurately the purposes of the certificate and expected results;

- Legal acts of the Central bank of the Russian Federation of the Russian Federation should comprise economically proved, is real ispolnimye, standard positions not contradicting each other;

- Legal acts of the Central bank of the Russian Federation without fail should be brought to the notice of persons who will execute and observe them the requirements fixed in them and positions by publication in periodicals, commenting in mass media, by radio and on TV, editions of special collections;

- The legal act should be accepted in due form which non-observance leads to that action of such certificate can be limited concerning those legal consequences which were meant by body, its published, or not to generate at all any legal consequences. In the first case such legal act is called as defective, and in the second - insignificant;

- Actions of legal acts of Bank of Russia can be ceased the cancellation bases (disappearance of a subject of regulation and consequently disappearance of need for regulation (are suspended) on the basis of the potential maintenance in them; the expiry of the term of action of the certificate;

The decision on its cancellation or action stay) or in case the bases for the termination of their action are outside of the legal act (the decision on certificate cancellation; acceptance of the new legal act instead of the operating; decrees about certificate cancellation).

The listed group of requirements is the basic and the most significant at realisation pravotvorcheskogo process for the purpose of working out and editions of certificates of Bank of Russia. These requirements require their legal fastening.

7. Prematurity of offered codification of the bank legislation is proved. At the given stage an actual problem is maintenance of stability of the bank legislation - as bases of the bank system which is, in turn, a key link of market economy, and also working out of the bank legislation meeting requirements of an economic situation and reflecting its prospect, - a problem objective and actual. Acceptance of the acts encouraging development of bank system, raising its reliability, obligations and mutual responsibility of all subjects of bank activity is necessary. As the purpose of legislative regulation of bank activity at the given stage, according to the author, it is necessary to consider a problem of filling of blanks in the legislation corresponding stable legal acts, and only after that it will be possible to speak about possibility of codification of the standard material fulfilled and checked up in practice.

8. Classification of legal acts of Bank of Russia (published in the form of positions, instructions, instructions and in other kinds provided by the bank legislation) is spent.

Depending on their nature (maintenance) legal certificates-documents are subdivided into following kinds:

- Normative acts of the Central bank of the Russian Federation (documents pravotvorcheskih the bodies, the containing legal rules calculated, as a rule, on long application and extending on an uncertain circle of persons);

- pravoprimenitelnye certificates of the Central bank of the Russian Federation (the documents of competent structures containing individual imperious instructions, applied unitary and addressed to concrete persons);

- interpretatsionnye certificates of the Central bank of the Russian Federation (the documents received as a result of official interpretation, containing pravopolozhenija, explanations of sense of legal rules);

- Contractual certificates of the Central bank of the Russian Federation (the documents resulting the agreement between corresponding subjects).

With a view of appropriate realisation of the constitutional function of protection and maintenance of stability of rouble the Central bank of the Russian Federation publishes normative acts, obligatory for all subjects of law. In the dissertation classification of legal acts of Bank of Russia on internal and external is offered.

Internal normative acts of Bank of Russia should be directed on the activity organisation in system of Bank of Russia on realisation of legislatively fixed functions, to have a binding character only for system of Bank of Russia. Internal normative acts of Bank of Russia can be accepted without dependence from a concrete mention in the law, undoubtedly, with observance of rules about the competence.

External normative acts of Bank of Russia mention the subjects who are not entering into system of Bank of Russia, being external in relation to it. External normative acts of Bank of Russia in the long term, according to the author, should be accepted in the cases directly reserved in the law.

The various order of preparation and coming into force of internal and external normative acts should receive fastening in the normative act.

Individually-legal certificates of Bank of Russia grow out of its activity in sphere of bank regulation and supervision. Them concern:

- Certificates - permissions - for example, licensing for realisation of bank operations (a recognition or according a right to carry out bank activity);

- Certificates - coordination - coordination establishing the juridical fact with Bank of Russia (other regulating bodies) certain actions, for example, appointment to posts of the head and the chief accountant of the credit organisation of certain persons;

- Ordering certificates - the certificates containing the instructions of Bank of Russia (accepted as a rule, in the exercise of supervisory powers or on the basis of its results) about fulfilment of certain actions with a view of elimination of lacks of activity of the credit organisations, prevention of fulfilment of offences further, or the instruction about offence elimination (offence ascertaining). Ordering certificates also can carry reguljativnyj character and comprise the measures of influence provided by item 74 FZ about Bank of Russia, the sanction in the form of the requirement about penalty payment, about restriction on fulfilment of separate bank operations (restriction of a circle of made operations), interdictions.

- pravoprekrashchajushchie certificates (the order of Bank of Russia on licence withdrawal on realisation of bank operations).

Pravoprimenitelnye certificates of the Central bank of the Russian Federation can be divided on internal and external. Internal pravoprimenitelnye certificates are directed on application of rules of law in system of Bank of Russia. External pravoprimenitelnye certificates of Bank of Russia are addressed external subjects - to the credit organisations, founders of the credit organisations.

Interpretatsionnaja activity of Bank of Russia consists in preparation of official explanations as certificates of interpretation of the right, information-methodical materials and generalisations of practice of application of federal acts and normative acts of Bank of Russia within its competence.

Among legal acts of the Central bank of the Russian Federation it is possible to allocate dogovory. The bank of Russia concludes dogovory for achievement of the purposes of its activity on a circle of the questions defined by the federal act. The will and interest at making contract of Bank of Russia are defined by the federal act.

Contractual the certificate of Bank of Russia has following specific signs: 1) it is the public contract (a version finansovopravovogo contracts); 2) as the obligatory party of the given contract the Bank of Russia or the representative authorised by it acts; 3) the contract consists in frameworks of realisation of bank activity. Thus, it is offered to understand the public contract concluded within the limits of realisation of bank activity as the contractual certificate of the Central bank of the Russian Federation.

9. The analysis of remedial bases of activity of bank of Russia under the edition of legal acts, and also it pravoprimenitelnoj activity which is carried out in frameworks jurisdiktsionnogo and pravonadelitelnogo processes is carried out.

Under jurisdiktsionnym process in the Central bank of the Russian Federation it is offered to understand carried out in the remedial form and regulated by rules of procedure pravoprimenitelnuju activity jurisdiktsionnogo, compulsory character of the Central bank of the Russian Federation under the resolution of disputes, realisation of sanctions and protection of guarding legal relation with application of measures of the state compulsion. In the dissertation following manufactures and procedures jurisdiktsionnogo process of the Central bank of the Russian Federation are allocated: manufacture on affairs about administrative violations; procedure of realisation of measures of precautionary character, procedure of realisation of measures presekatelnogo character, procedure of realisation of measures of regenerative character, procedure of realisation of measures of financially-legal responsibility.

Pravonadelitelnyj process in the dissertation is considered as the kind of remedial activity regulating pravoprimenitelnuju, nejurisdiktsionnuju activity of Bank of Russia on realisation of the belonging competence of the bank sphere, including: registration manufacture; litsenzionno-allowing manufacture, administrativnodogovornoe manufacture and procedure of the admission of banks in system of insurance of contributions.

10. Research has shown, that public relations in bank sector have ripened so, that objectively necessary legislative granting to Bank of Russia as to supervising body of the right to judgement in aspect of qualitative diagnostics of a condition of the credit organisation. The credit organisations, to which are applied by Bank of Russia measures of supervising reaction, proceeding from the right to judgement, should have appeal possibility in administrative and the legal process. Entering of additions into federal acts «About the Central bank of the Russian Federation (Bank of Russia)» and «About banks and bank activity» regarding legislative fastening of the right of Bank of Russia on judgement Is required and according to a duty of the credit organisation to take into consideration the specified judgement. Before federal act acceptance about fastening to Bank of Russia of the right to judgement the edition Bank of Russia of the normative act about concept, principles of removal and the form of expression of judgement Bank of Russia is obviously possible.

11. The modern design of two-level bank system in which the Bank of Russia is allocated by supervision functions, meets the requirements of market economy and is characterised by historical continuity. Realisation of functions of supervision by the Central bank of the Russian Federation allows kvalifitsirovanno to estimate efficiency of regulatory legal acts, operatively to make changes and additions to these certificates, thereby, improving supervision of the credit organisations. It is offered with a view of quality improvement normotvorcheskoj to function of Bank of Russia provedit examination of standard legal acts of Bank of Russia and their projects on korruptsiogennost.

The basic maintenance of state regulation in denezhnokreditnoj to sphere of the Russian Federation should be qualitative normotvorcheskaja activity of the Central bank of the Russian Federation. Normotvorchesky function of Bank of Russia is directed, first of all, on increase of efficiency of bank system. The basic directions normotvorcheskoj functions of Bank of Russia, as a rule, are defined doktrinalnymi by documents, such as the Basic directions denezhnokreditnoj politicians, Strategy of development of bank sector, the Program of the Government of the Russian Federation of social and economic development of the Russian Federation on intermediate term prospect.

The bank of Russia on the is financially-legal status intended to accept the normative acts directed on increase of financial stability, increase in competitiveness of the Russian credit organisations, strengthening of protection of interests of investors, creditors and investors, trust strengthening to bank sector.

The big attention in the normotvorchestve gives Bank of Russia to perfection of bank supervision. It plans modification of standard base on supervision according to the recommendations developed as a result of action joint with TASIS and EU of the project «Bank supervision and the reporting». Task in view realisation is taken as a principle the new Basel agreement under the capital (Basel of a TT). Thus, at realisation normotvorcheskoj functions of Bank of Russia the international experience and international law is considered. As an example it is possible to result the international standards of the fiscal accounting also.

normotvorcheskoj function of Bank of Russia should carry perfection of legal base of insurance of contributions, struggle against illegal washing up (legalisation) of the incomes received criminal by, carrying out of jobberies to the important directions of perfection on cashing in of money resources, development of the market of financial services, including financial intermediary.

12. It is necessary to strengthen legislatively elements of the public status of Bank of Russia, in particular, to develop legislative guidelines about normotvorcheskoj functions of Bank of Russia. It is expedient to fix rules of preparation and the edition of standard legal acts of Bank of Russia at federal act level, thus to divide them on internal and external with legislative fastening of features of their preparation, acceptance and coming into force. Observance of uniform approaches by Bank of Russia to the form of legal regulation by Bank of Russia of public relations in monetary and credit sphere as on one questions of the internal organisation in Bank of Russia on realisation of the assigned functions normative acts of Bank of Russia are published, and on other questions, also concerning Is obviously important to the internal organisation in Bank of Russia on realisation of the assigned functions, the documents which are not normative acts of Bank of Russia are published.

Besides more proved would be to translate on federal act level practically expedient norms containing in normative acts of Bank of Russia.

13. In the dissertation arguments about inexpediency of deprivation of Bank of Russia of supervising powers are resulted:

- Legal positions of the Constitutional Court of the Russian Federation about the special public status of the Central bank of the Russian Federation fix the status of Bank of Russia concerning bank supervision;

- Supervision and other levers of Bank of Russia constitute a single whole on maintenance of stability of national currency; in activity of Bank of Russia functions of definition of the Policy of Law in sphere denezhnokreditnyh relations, normotvorcheskie powers on legal regulation in sphere of monetary and credit relations, realisation of kontrolno-supervising powers in bank system of the Russian Federation and certain rendering of the state services are combined; at Bank of Russia normotvorcheskih and pravoprimenitelnyh, kontrolno-supervising functions it is necessary to recognise presence optimum;

- Within the limits of administrative and bank reforms the further development of the legislation on financial intermediary taking into account positively proved norms of the bank legislation on financial stability of kontrolno-supervising activity is necessary.

- The question on regulation of monetary and credit relations C by the help of mandatory provisions is closely connected with a question on admissible borders of self-regulation of bank activity.

In the dissertation the offer is proved to allocate the Central bank of the Russian Federation with the power to initiate legislation.

On the basis of the carried out research and the received results the draught federal law Concept about entering of additions into the Federal act «About the Central bank of the Russian Federation (Bank of Russia)» (the Appendix see) is developed.

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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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