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THE CONCLUSION.

1. The carried out research allows to establish, that the Central bank of the Russian Federation, carrying out functions of state regulation of bank activity, is the special body which is carrying out on behalf of the state financial activity.

The bank of Russia plays the important role at formation and realisation of one of components of the state financial policy - monetary — the credit policy of the state, participates in working out of economic policy of the state. Management of a public debt of Russia is carried out also at direct participation of the Central bank of the Russian Federation. Besides, it takes part in working out and carrying out by the state of a budgetary and currency policy, carries out operations with financial resources practically all links of a financial system of the country, is the emitter of bank notes, and also the structure directly regulating a monetary and credit system of the country. Hence, functions on realisation of financial activity of the state constitute the essential of the competence of Bank of Russia. Thus it is necessary to notice, that activity of Bank of Russia, including state regulation of bank activity carried out by it, has public character. Normal development of a national economy is impossible without presence stable bank, without effective and uninterrupted functioning of system of clearing settlements as one of its major directions.

Along with the Central bank of the Russian Federation the credit organisations participate in realisation of financial activity also. In spite of the fact that they in a considerable part are not state organisations, in some cases banks posess imperious powers in sphere of public finances.

2. Bank regulation is a version of operating influence of the state on participants of bank legal relations. In the broad sense of the word bank regulation is understood as all forms of operating influence on bank system. However in this case would be more correct to speak only about the state influence as it is a question directly of activity of bodies of the state influencing functioning and stability of all bank system. Thus, bank regulation is one of versions of the state influence.

In the narrow sense of the word regulation is means of operating influence on organizational not subordinates to regulating body objects. State regulation as an indispensable element of state-administrative activity finds the expression first of all in normotvorcheskoj the competence of enforcement authorities and the government, and also in realisation of a complex of various administrative actions. Hence, state regulation of bank activity is a system of specific rules of the behaviour formulated by the state bodies which have the purpose restriction of bank activity. From the given definition follows three conclusions: 1) regulation represents not that other as restriction; 2) regulation has inherently the economic nature, but thus comprises an element of noneconomic compulsion; 3) the most important form of regulation acts the legal form when regulation is carried out from the person it is state-power structures, as it gives the chance for application of measures of the state compulsion.

Proceeding from essence of bank activity, it is possible to draw a conclusion, that state regulation of bank activity is a creation of system of protection of the rights of creditors and investors of the credit organisations by licensing of their activity, an establishment of obligatory requirements and suppression of infringements of the legislation, allowing to carry out the universal control over activity of the credit organisations with a view of the decision of problems of the state.

One of the major directions of state regulation of bank activity is the organisation of system of interstate clearing settlements.

3. The carried out research of a legal status of Bank of Russia allows to draw a conclusion, that the Central Bank of the Russian Federation is not only the legal body, but also the state body allocated with imperious powers. It possesses the signs inherent in legal bodies of various organisation-legal forms. The bank of Russia simultaneously possesses signs of the unitary enterprise and official body, but is not literally neither that, nor another. Thus, the Central Bank of the Russian Federation is, first, the noncommercial organisation, and secondly, the legal body of a special sort, the so-called public legal body.

Having the dual legal nature, the Central bank of the Russian Federation is not carried by the legislator to enforcement authorities though directly carries out government functions. The bank of Russia is certainly allocated by state-imperious powers in monetary and credit sphere and in sphere of bank activity, but it is not allocated by the enforcement authority status.

So, the Central bank of the Russian Federation represents the special public authority of the special competence which are carrying out functions of management by bank system.

The constitution of the Russian Federation and the bank legislation not only properly do not define a place of Bank of Russia in system of public authorities and its status as legal person, but contain the norms obviously contradicting each other. It is thought, would be to specify expediently legislatively the organisation-legal form of the Central bank of the Russian Federation and unequivocally to fix its legal status as public authority.

4. The analysis of a legal status carried out by the author, degrees of independence and functions of Bank of Russia as body of state regulation of bank activity, and also foreign experience of construction of bank system allows to draw a conclusion, that one of possible ways of the further perfection of bank system of Russia is division of functions of management of it between several state institutes. The list of the problems solved according to the current legislation by Bank of Russia, raises serious doubts as such concentration and a combination of functions inevitably leads to stagnation. The similar monopolism of controls is dangerous to functioning of bank system. Centralisation of all completeness of the power at one institute can lead to subjectivity of its actions in relation to regulation of bank activity. Considering positive experience of the countries with the developed market economy, the top level of bank system of Russia, in our opinion, in the long term is necessary for reforming, having created at this level some specialised state bodies between which functions of Bank of Russia would be divided.

5. Carried out in the course of state regulation

Bank activity normotvorchestvo Bank of Russia is a special sort activity of Bank of Russia as state body,

Authorised to carry out government function. normotvorchestvo allows to erect the decision of Bank of Russia as state body in obligatory rules of behaviour by their fastening in subordinate legislation normative acts of Bank of Russia, attracting legal consequences and concretising legislative instructions or establishing primary norms.

However normotvorcheskaja activity of Bank of Russia for the various reasons causes vital issues, including from a position of the established order of promulgation. The publication of normative acts in

«The bulletin of Bank of Russia» mismatches requisitions of publication of legal acts as conditions of its distribution do not provide general availability of certificates of Bank of Russia, being obligatory for all legal and physical persons. In our opinion, proceeding from the status of the Central bank of the Russian Federation as body of state regulation of bank activity, it would be more expedient to carry out the publication of normative acts of Bank of Russia in «the Russian newspaper», besides, such position would satisfy obshchepredjavljaemym with the legislation to requirements.

6. Having considered the basic points of view existing at the present stage in the legal literature, and also having defined the position concerning the legal nature of non-cash money resources, the author has come to conclusion, that non-cash money resources are object of the corresponding incorporeal right of the owner of the account to the bank, arisen at it in view of acceptance by bank of obligations on return of means from the account, instead of property. The owner of the account inherently is not the proprietor of the money resources which are on the account, and only the person, authorised to dispose of the money resources which are on the account, that is the subject of the corresponding incorporeal right as the bank does not store those money resources which have been transferred into account its client, and only makes record about receipt of means and uses them at own discretion, having taken up obligations on returning of means to the client under its first requirement.

7. The settlement relations arising in the course of the organisation and functioning of clearing settlements, are regulated in aggregate by norms of the civil and financial right. C one party, system and forms of clearing settlements are settled by the civil legislation, but on the other hand public character, and also a certain legal inequality of their subjects is inherent in the given relations. The given field of activity, besides, comes under to the obligatory state

To regulation. Thus observance of private-legal interests of clients of banks is provided by means of state regulation of the given kind of activity. Settlement legal relations have the expressed public shade and differ considerable imperative, imperious powers of the state in the specified sphere. Thus, settlement relations are a subject not only civil, but also the financial right.

8. Many questions of realisation of clearing settlements are settled now at level of bank rules and the customs of a business turn accepted in bank practice. The similar situation undoubtedly creates additional complexities and conflict situations in the course of realisation of settlement legal relations. The increase in volumes of the contractual documentation, its extreme complexity and, as consequence, complexities at realisation of checks of observance of requirements of the legislation on calculations, and also inevitable infringement of interests economically more weakness became consequences of this situation. Thus, uncertainty of legal conditions generates legal risk. Necessity of legislative regulation of considered relations does not cause doubts. It also has caused inclusion in the Civil code of the Russian Federation of the chapter specially devoted to forms of clearing settlements which regulates general rules and forms of realisation of the given kind of calculations.

However, the specified law fixes only substantive provisions of rules of realisation of clearing settlements, not concretising them. Complexity and importance of settlement mutual relations predetermines, in our opinion, necessity of an establishment of uniformity of legal regulation, and also detailed fastening of rules and standards of realisation of clearing settlements at legislative level. The rules of calculations established by the civil legislation, should be concretised by the published

Bank of Russia the bank rules providing realisation of norms of the civil legislation.

Working out and federal act acceptance are represented to development of the stated position about clearing settlements which will regulate system of legal regulation of calculations expedient. In our opinion, it is extremely necessary to regulate questions of the organisation of clearing settlements, first of all at legislative level, and then to detail them at departmental and methodical levels, and also at level of the registration policy developed by the most credit organisation. The given legal relations have public character, therefore imperfection of the current legislation regarding regulation of the specified legal relations not only leads to disputes of the credit organisations with clients, but also creates instability of functioning of all system of clearing settlements. The created situation obviously does not promote stability of bank system, reduces efficiency of payment discipline, and also promotes growth of non-payments, leads to infringement of legitimate interests not only clients of the credit organisation, but also the state as a whole.

By present time in Russia there is no enough a developed legislation on the payment means, the operating standard base consisting in basic from the certificates of Bank of Russia, causes various interpretation. In this connection it is represented, that the law on clearing settlements should generate a legal design of realisation of the calculations, regulating main principles according to which the Bank of Russia will establish rules, forms and standards of clearing settlements.

9. Proceeding from generalisation of world and national experience of application of various forms of clearing settlements, the author takes out a number of offers on perfection of regulation of interstate clearing settlements, namely it is offered:

To enter a legislative interdiction for use by banks at realisation of partial payment of the payment documents of memorial warrants presented by clients as the given document is internal, used bank for registration of internal conductings, and it is not included in the list of settlement documents;

To establish at legislative level limits of check of the documents represented by the addressee of means at execution of letters of credit, having limited to their carrying out of an estimation only external signs of documents, that is stock-taking of all necessary on a condition of the letter of credit of documents and presence of corresponding requisites;

To accept the normative act accurately establishing an order, terms and conditions of realisation of calculations by checks, having assumed as a basis the Uniform law on the checks, accepted by the Geneva convention. Establishing dependence of the rights chekodatelja from term for a check presentation for payment, neither civil, nor the bank legislation do not establish duration of the given term. It is thought, it would be expedient to settle these questions at legislative level, having accepted the Federal act about checks;

To change a bank operations procedure in a case nepostuplenija from the payer when due hereunder statements for the acceptance of the payment requirement or for refusal of it, having established a bank duty to pay the given payment requirement, preliminary having taken all necessary measures for reception by the payer of the notice on receipt of such payment document in bank; to make changes to the current legislation, having provided the right (and simultaneously a duty) banks to check validity of requirements of the addressee on the basis of the data specified by it in the payment requirement, and at revealing of infringements

To return the settlement document without execution. Absence of such norms creates possibility of abusings from the addressee of means that breaks the rights and legitimate interests of the payer; for the purpose of an exact regulation of the rights of bank to establish concrete term during which collection order lacks should be eliminated, as having established dependence of behaviour of bank on observance of certain term, the Bank of Russia has not established duration of the given term.

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A source: TIMAKOVA Tatyana Gennadevna. FINANCIALLY-LEGAL PROBLEMS of REGULATION by the CENTRAL BANK of the RUSSIAN FEDERATION of INTERSTATE CLEARING SETTLEMENTS. The dissertation on competition of a scientific degree of the master of laws. Saratov 2003. 2003

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