<<
>>

1.1. The General characteristic of standard base and powers of territorial establishments of Bank of Russia on exchange control realisation

The organisation of exchange control of the Central bank of the Russian Federation in territory of subjects of the Russian Federation as it is direct, and through the authorised banks according to the legislation of the Russian Federation and normative acts of Bank of Russia carry out the isolated divisions of Bank the Russia entering into its uniform centralised system with vertical structure of management, - territorial establishments.

It is necessary to notice, that under the decision of Board of directors of Bank of Russia territorial establishments can be created on the economic region consolidating territories of several subjects of the Russian Federation, however now territorial establishments function in subjects of the Russian Federation [103].

Pravoustanavlivajushchim the document of territorial establishments of Bank of Russia besides the Federal act “About the Central bank of the Russian Federation (Bank of Russia)” is Position about territorial establishments of Bank of Russia from July, 29th, 1998 № 46-P, approved by Board of directors of the Central bank of the Russian Federation on April, 10th, 1998 (the report № 15), fixing powers of territorial establishments of Bank of Russia including in area

Exchange control which, unfortunately, officially is not published till now and contains in help legal systems "Guarantor", ConsultantPlus, etc.

It is interesting to notice, that territorial establishments of Bank of Russia in edges, areas and autonomous regions of the Russian Federation, in the cities of Moscow and Sankt - Petersburg, are called as "central administrative boards", and in republics as a part of the Russian Federation - “national banks”. Thus and the management of activity is carried out in central administrative boards - the chief, and in national banks - the chairman. The difference in names at the same time does not assume difference in powers of central administrative boards and national banks as both those, and others have no status of the legal person and possess the powers given by already mentioned Position about territorial establishments of Bank of Russia from July, 29th, 1998 № 46-P, and also other normative acts of Bank of Russia. In this case special allocation of territorial establishments of Bank of Russia in republics as a part of the Russian Federation is dictated, in our opinion, by desire to consider the special federal device of the Russian Federation.

Besides the exchange control organisation the territorial establishment in territory of the subject of the Russian Federation participates in carrying out uniform state monetary - the credit policy of the Central bank of the Russian Federation directed on protection and maintenance of stability of rouble; provides development and strengthening of bank system of the Russian Federation; effective and uninterrupted functioning of system of calculations; realisation of regulation and supervision of activity of the credit organisations; the organisation and the control over activity of the credit organisations on a securities market; carrying out of the analysis of a condition and prospects of development of economy and the financial markets of region.

Interest represents, in our opinion, a legal status of territorial establishment of Bank Rossii1.

The legislation (the Federal act “About the Central bank of the Russian Federation (Bank of Russia)”, Position from July, 29th, 1998 № 46-P) defines territorial establishment as the isolated division of the legal person - Bank of Russia. According to the Civil code of the Russian Federation (article 55) the isolated division of the legal person can function in the form of representation or branch. With, one party, the territorial establishment of Bank of Russia can be considered as branch, as, being the isolated division, territorial establishment:

- Carries out a part of functions of the legal person - Bank of Russia, including on representation of interests of Bank Russia,

- It is allocated by the property which cost is reflected in balance of the territorial establishment, entering a component in balance of Bank of Russia, and carries out powers on using and possession of the property which is on its balance, and also under the order it in the limits defined by Bank of Russia,

- Disposes of means for the maintenance of the device within the estimate of expenses approved by Bank of Russia,

- Operates on the basis of the position approved by the authorised body of the legal person - Board of directors of Bank of Russia,

- It is headed by the head who is appointed and dismissed by the Chairman of Bank of Russia and operates on the basis of G eneralnoj the power of attorney which are given out annually by the Chairman of the Central bank of the Russian Federation,

- Has the press, a stamp and the form with the name and the image of the State Emblem of the Russian Federation.

At the same time neither in the federal legislation, nor in normative acts of Bank of Russia territorial establishments of Bank of Russia are not named as branches. Besides, concerning territorial establishments the rule of the Civil code of the Russian Federation about instructions of branches in constituent instruments of the legal person who have created them as at the legal person - the Bank of Russia simply is not present constituent instruments in understanding of the Civil code of the Russian Federation cannot be observed. In our opinion, such feature of the status of territorial establishments is caused by the special status of the most legal person - Bank of Russia to which as it was specified in the first chapter of the present work, are not always applicable is private-legal requirements. At the same time powers of territorial establishments of Bank of Russia in the field of exchange control follow from powers of the legal person - the Central bank of the Russian Federation and are realised by them in subordinated territory.

It is necessary to notice, that territorial establishment of Bank of Russia within the powers given to it independently in the activity from public authorities of subjects of the Russian Federation and local governments.

The central bank of the Russian Federation, having conferred the concrete powers to territorial establishments specified in Position from July, 29th, 1998 № 46-P, at the same time has specially reserved, that the territorial establishment has no right to accept normative acts, and also to give out guarantees and guarantees, bill and other obligations, has not the right to give credits for financing of deficiencies of the federal budget and budgets of subjects of the Russian Federation, local budgets and budgets of the state off-budget funds, has not the right to carry out without the permission of Bank of Russia bank operations in a foreign currency with legal and physical persons.

Its structural divisions are engaged in direct realisation of powers of territorial establishment of Bank of Russia. In particular, in structure of Central administrative board of the Central bank of the Russian Federation on the Saratov area the department of currency regulation and the exchange control, consisting of two sectors - sectors of exchange control and sector of currency regulation and uncommercial operations operates. Last in interaction with other structural divisions of Central administrative board of the Central bank of the Russian Federation on Saratov also will organise realisation of function of Bank of Russia on exchange control in territory of the Saratov area where as of January, 1st, 2002 bank operations in a foreign currency carry out 14 local authorised banks having 23 authorised branches, 13 branches of the nonresident authorised banks and 34 branches of Savings Bank Rossii1.

It is necessary to notice, that originally in 1990 - in transformation of territorial offices of the State Bank of the USSR to central administrative boards (national banks) Bank of Russia - in Central administrative board of the Central bank of the Russian Federation on the Saratov area, as well as in other areas, the department of currency transactions in the beginning in structure of management of monetary regulation, securities and currency transactions, and then independent which problems were the analysis of activity of commercial banks in territory of the Saratov area on operations with a foreign currency, maintenance of observance of the current legislation and normative acts of Bank of Russia concerning operations with a foreign currency, the work organisation on exchange control within the delegated functions, working out and entering of offers on perfection of operations with a foreign currency, the control over their performance and others has been created. As the Central administrative board of currency regulation and exchange control of Bank of Russia as already it was marked earlier, has been created only in the end of 1993, territorial divisions of exchange control almost functioned 3 years without uniform co-ordinating body in structure of Bank of Russia, that negative by image was reflected in quality of their work.

After creation of Central administrative board of currency regulation and exchange control of Bank of Russia Typical position about management (department) of currency regulation and exchange control of the Main territorial administration (National bank) Bank Rossii1, defined uniform problems (maintenance together with the authorised banks or their branches, and also territorial divisions of bodies of exchange control of a uniform state policy in sphere of currency regulation and exchange control has been approved; maintenance of correct and uniform application and observance by residents and non-residents of the currency legislation of the Russian Federation; the prevention of infringements of the currency legislation of the Russian Federation residents and non-residents; application of sanctions for infringement of the currency legislation of the Russian Federation by residents and non-residents; Gathering of the bank reporting and the information, conducting databases on currency transactions, and also preparation svodno - analytical materials concerning currency regulation and exchange control) and functions of divisions of currency regulation and exchange control that promoted increase of efficiency of exchange control on places.

Here it is necessary to mention the following problem. It is traditional, including on the basis of the mentioned Typical position about currency divisions, in structures of the Central bank of the Russian Federation on places - central administrative boards and national banks - departments or managements which names necessarily included word-combinations and “currency regulation”, and "exchange control" were created. So was and with currency division of Central administrative board of the Central bank of the Russian Federation on the Saratov area. But, in our opinion, it is not absolutely defensible, as territorial establishments of Bank of Russia do not carry out function of currency regulation.

According to Position from July, 29th, 1998 № 46-P

The territorial establishment carries out in territory of the subject of the Russian Federation a part of functions of the Central bank of the Russian Federation according to the given Position and other normative acts of Bank of Russia and possesses the powers given to it given Position and normative acts of Bank of Russia. Directly in Position about territorial establishments of Bank of Russia it is specified, that one of problems of territorial establishment is the exchange control organisation thus, that on currency regulation in the given normative act of Bank of Russia, being by the basic pravoustanavlivajushchim the document for territorial establishments of Bank of Russia, is not spoken. Other normative acts of Bank of Russia of powers on currency regulation behind territorial establishments do not fix.

By consideration in the first chapter of the present work of terms "regulation" and "control" we were defined, that regulation is carried out for the purpose of creation and realisation of the certain law and order, and the control is directed on maintenance of the established law and order, on revealing, the prevention and suppression of its infringements. In this case the territorial establishment does not create an order, and only watches observance established by the Central bank of the Russian Federation as body of currency regulation of rules of carrying out of currency transactions, etc. with a view of suppression of their infringements.

Besides, function of the Central bank of the Russian Federation on currency regulation is directly connected with normotvorchestvom which have the right to carry out only the Central bank of the Russian Federation according to Federal act article 6 “About the Central bank of the Russian Federation (Bank of Russia)” and Position of Bank of Russia “About an order of preparation and coming into force of normative acts of Bank of Russia” from September, 15th, 1997 № 5191. The territorial establishment of Bank of Russia has no right to accept normative acts.

In Position from July, 29th, 1998 № 46-P also it is underlined, that territorial establishments have not the right to carry out without the permission of Bank of Russia bank operations in a foreign currency, and the right of carrying out of currency transactions is given Bank of Russia within the limits of performance of function of currency regulation.

Thus, a traditional designation of names of currency divisions of territorial establishments of Bank of Russia as managements (departments, sectors) currency regulation and exchange control, and also inclusion in positions about them of functions on currency regulation is not quite correct, as to territorial establishments of Bank of Russia is not accorded a right normotvorchestva, being a prevailing element in concept of currency regulation as legal regulation versions, and also are not delegated other powers on currency regulation.

At the same time problems of the Central bank of the Russian Federation as exchange control body carry out territorial establishments of Bank of Russia.

So, a direction of activity of Bank of Russia as exchange control body is the control over fulfilment of currency transactions by the credit organisations. In development of the given norm Position from 29

July, 1998 № 46-P defines, that territorial establishments of Bank of Russia register changes of the authorised banks and branches of banks on the basis of statements of the credit organisations taking into account results of checks, the decision on cancellation of the given out certificates on registration of changes make. Besides, territorial establishments consider the reporting of the authorised banks and their branches on currency transactions.

Exchange control also assumes definition of conformity spent by residents and non-residents of currency transactions to the current legislation and presence of licences necessary for them and permissions, therefore to territorial establishments of Bank of Russia powers under the control, including by carrying out of checks, conformity to the current legislation of the Russian Federation and to normative acts of Bank of Russia spent by residents and non-residents of currency transactions, and also operations spent by non-residents with roubles are delegated.

It is necessary to notice, that territorial establishments of Bank of Russia not only supervise conformity of carrying out of currency transactions to demanded permissions and licences, but also within the powers given by Bank of Russia, give out to residents and non-residents of the permission to fulfilment of the currency transactions connected with movement of the capital, and carry out others provided by normative acts of Bank of Russia of action concerning the specified operations.

Realising powers of Bank of Russia, territorial establishments have the right to collect with legal and physical persons (residents and non-residents) when due hereunder penalties for infringement of the currency legislation of the Russian Federation and also to apply other sanctions provided by the legislation of the Russian Federation.

As it was already marked, to territorial establishments of Bank of Russia is not accorded to publish a right normative acts, but in a certain measure

They participate in normotvorcheskoj activity of the Central bank of the Russian Federation, in particular, spend studying, the analysis and generalisation of practice of application by residents and non-residents of the currency legislation and normative acts of Bank of Russia and on this basis prepare offers on modification and additions in the currency legislation of the Russian Federation.

■ the Listed powers of territorial establishments of Bank of Russia are fixed directly in Position from July, 29th, 1998 № the 46-item At the same time the given Position provides, that powers of territorial establishments of Bank of Russia in the field of exchange control can be established and other normative acts of Bank of Russia.

In particular, by joint instructions of Bank of Russia and the State Customs Committee of Russia “About an exchange control procedure behind receipt to the Russian Federation gains from export of goods” and “About an exchange control procedure behind validity of payment by residents of the imported goods” it is provided, that in case of transfer of an export gain into the account of the exporter in foreign bank or payments by a foreign currency of the goods imported under the contract from the bank account of the importer in foreign bank the transaction passport is represented for signing in territorial establishment of Bank of Russia in a place of the state registration of the exporter or the importer. Differently, territorial establishments can carry out some functions of the authorised bank - signing of passports of transactions both export, and import. The territorial establishment of Bank of Russia carries out the control over operations under the passport of the transaction signed by it. However, the order of the control which according to the mentioned instructions should be established Bank of Russia, does not exist yet. The territorial establishments signing the passports of transactions (and this small number of territorial establishments, for example, Moscow,

The Leningrad, Tyumen areas) apply the order of the control established for authorised banks [104].

Thus, for definition of powers of territorial establishments of Bank of Russia in the field of currency legal relations normative acts of the Central bank of the Russian Federation, delegating to territorial establishments some question decision on application of the currency legislation, basically, in the field of exchange control are legally significant.

Further we pass to more detailed consideration of pressing questions of standard fastening of the rights and duties of territorial establishments of Bank of Russia on law and order maintenance in sphere of currency legal relations and optimisation of their realisation.

<< | >>
A source: Neverova Natalia Vladimirovna. POWERS of TERRITORIAL ESTABLISHMENTS of the CENTRAL BANK of the RUSSIAN FEDERATION In the field of EXCHANGE CONTROL. The dissertation on competition of a scientific degree of the master of laws. Saratov 2002. 2002

More on topic 1.1. The General characteristic of standard base and powers of territorial establishments of Bank of Russia on exchange control realisation:

  1. 1.4. Powers of territorial establishments of Bank of Russia under the control for, fulfilment of currency-exchange operations
  2. actual legal questions of interaction of territorial establishments of the Central bank of the Russian Federation with law-enforcement and supervising bodies concerning exchange control (on an example of territorial establishment of Bank of Russia in the Saratov area)
  3. Neverov Natalia Vladimirovna. POWERS of TERRITORIAL ESTABLISHMENTS of the CENTRAL BANK of the RUSSIAN FEDERATION In the field of EXCHANGE CONTROL. The dissertation on competition of a scientific degree of the master of laws. Saratov 2002, 2002
  4. powers of territorial establishments of Bank of Russia on delivery of permissions to fulfilment of currency transactions
  5. 1.3. Powers of territorial establishments of Bank of Russia on consideration of the reporting of the credit organisations on currency transactions
  6. 1.2. Powers of territorial establishments of Bank of Russia on carrying out of checks of the credit organisations concerning observance of the currency legislation
  7. Chapter 2. Legal maintenance of the exchange control which is carried out by territorial establishments of the Central bank of the Russian Federation
  8. activity of territorial establishments of the Central bank of the Russian Federation on generalisation of practice of application of the legislation on currency regulation and exchange control
  9. Organization-legal bases of activity of territorial establishments of the Central bank of the Russian Federation in the field of exchange control
  10. Powers of Ministry of Justice of Russia and its territorial bodies on carryingout of legal examination of standard legal acts and their projects as an element of its competence
  11. 1.4. The characteristic of standard base of customs business in Russia (X-XV centuries)
  12. a role of base and organizational-functional principles of financial activity of Bank of Russia in improvement of quality of realisation of its competence
  13. the Head І. The General characteristic of a legal status of the Central bank of the Russian Federation (Bank of Russia)
  14. § 1. Powers of Bank of Russia on the state registration The credit organisations and to licensing of bank activity
  15. the central bank of the Russian Federation in system of bodies and agents of exchange control