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§ 1. Value and criteria of classification of legal acts of the Central bank of the Russian Federation

Classification of legal acts of the Central bank of the Russian Federation promotes working out and application of legal acts, and also their studying and ordering. It is one of fixed assets of deeper knowledge of certificates, disclosing of their maintenance and definition of appointment of each of kinds.

Classification gives the chance to define an actual role of separate kinds of certificates in regulation of bank activity. Division of legal acts into kinds is the important means of explanation of sense of rules of law and their correct application by competent bodies, promotes understanding of the general principles and right communications as a whole. Quality depends on efficiency of classification of legal acts of Bank of Russia both pravoprimenitelnogo and pravotvorcheskogo processes as users of the information in bank sphere about certificates become the increasing quantity physical and legal bodies.

Division of the legislation into kinds and forms taking into account various aspects not less important in comparison with construction of hierarchical system of legal acts as the initially incorrectly chosen both established kind and the certificate form can negatively affect, first of all, for a public life of the Russian Federation as a whole and its each subject separately. Besides, it can result and in some discrepancies, nestykovkam in system of the Russian legislation.

Already throughout long time the considerable quantity of scientists-jurists is engaged in questions of classification of legal acts and consequently some points of view deserve especially steadfast attention.

The problem of division of legal acts on kinds has been mentioned in Russia during the pre-revolutionary period of time. In the end of XIX century in the literature it is established, that «command of places and persons of managing directors proceeds in the form of definitions, instructions, orders or decrees; but always not differently, as within that power what is given them from the Supreme power» [449]. C other party, definition of kinds is carried out and by division of decrees on technical, legal, attributive, executive, exclusive, independent, dependent and extreme [450]. In the beginning of XX century the purposes of a specific definition of legal acts which speak that «for classification of Russian state establishments following bases are represented are concretised: 1) degree of the power entrusted to this or that establishment, 2) space of actions of the power, 3) a sort of the power and 4) structure of establishments» [451]. Therefore legal acts «differ depending on, whether they are published glavoju the executive authority - decrees of the Supreme management, or the subordinated controls, and besides either central or local» [452]. nesprosta A.I.Elistratov marks: «Decrees classify to various signs - that according to their maintenance, depending on the one who publishes them in connection with features of their validity» [453]. Here division of legal acts into kinds finds other lines as they are differentiated now on decrees or orders organizational and executive, published with the permission of the monarch and exclusive [454].

In scientific doctrines of the Soviet right it is offered to classify executive authority certificates on: «) certificates-instructions; the coordination certificates, which special group are constituted by planning acts; certificates operative rukovo - detva; the certificates containing technical norms; administrative decisions and decisions» [455].

Their legal properties according to which they are subdivided on standard and individual are considered as one of the main criteria of classification of certificates for the reason that management certificates are the most capacious expression of process of realisation of the executive authority as in them finds the expression subordinate legislation administrative law-making that gives the basis to characterise them in quality pravoustanovitelnyh certificates [456].

It is represented in this case expedient to agree with R.F.Vasileva's point of view, that it is possible to mean by legal properties of legal acts as well other properties of their legal nature, such as their validity, action sphere, the form. In this connection also it is possible to consider classification by these bases as classification by their legal properties. And «the division of legal acts on standard and not standard, individual, would be more exact to name classification of such certificates depending on character of their maintenance, whether from that they are means of creation of an is standard-legal basis of a life and state and society activity or an implementer of the rules of law forming this basis. On standard and individual it is possible to consider division of legal acts as classification of these certificates by their legal function (an establishment of rules of law and their realisation)» [457].

Thus, depending on legal properties all legal acts are subdivided into standard and individual kinds.

To a standard kind carry actually normative acts, standard interpretatsionnye certificates and law-making treaties. All of them are connected by that the generalising positions extending on an uncertain circle of subjects and situations contain.

It is possible to rank as an individual kind pravoprimenitelnye certificates, certificates kazualnogo interpretation and contractual certificates. All of them are made related by that they contain the decisions extending on concrete person and situations. At the same time there is also an exception of division of all legal acts on standard and individual kinds. So, laws annually passed by a legislature on the budget (federal and regional) forthcoming fiscal year are the strongly pronounced mixed certificates in which standard and individual instructions are simultaneously fixed.

Normative acts urged to establish, change, cancel rules of law, to change sphere of their action. Individual certificates grow out of realisation of rules of law (application, execution, use).

On periods of validity normative acts can be classified on constant and time.

Teoretiko-legal knowledge allows to consider classification of legal acts under other corner of sight, discriminating them on following bases:

1. On the subjects who are carrying out application of the right: certificates of the state bodies and public organisations; certificates of the head of the state - the President of the Russian Federation; certificates of federal governing bodies; certificates of governing bodies of subjects of the Russian Federation; certificates of tribunals; certificates of organs of the Prosecutor's Office; certificates of supervisory authorities and the control; certificates joint and individual.

2. In a legal regulation subject: certificates konstitutsionno-legal; certificates is administrative-legal; financially-legal certificates, certificates ugolovnopravovye; certificates of application material and the law of procedure.

3. Under the form pravoprimenitelnoj activity: certificates executive and guarding.

4. To a functional sign: certificates reglamentatory; pravoobespechitelnye certificates.

5. Under the form of external expression: certificates-documents and certificates-actions (verbal and implied).

6. Under the jural significance: the basic and auxiliary.

7. Depending on action in time: unitary action and lasting [458 [459].

In the general theory of law there are also other positions according to which following kinds of the state certificates are allocated:

«1. On subjects of management:) public (elections, a referendum);

Federal, regional (subjects of Federation), local; legislature, the executive authority, the judicial authority; individual, joint.

2. On the purposes and action time — strategic (long-term); tactical (intermediate term); operative (short-term).

3. On action scale — nation-wide; local (within an administrative and territorial unit); the interdepartmental; the interdepartmental.

4. By the standard nature - the general (standard), private (not standard).

5. On a validity — the higher (constitutional), legislative, subordinate legislation.

6. By government kinds - civil, military... »1 *. This classification is extremely important, first of all, for bodies

The government which functional duties include realisation pravotvorcheskoj activity including for the Central bank of the Russian Federation. It gives the chance to consider operating legal acts at the edition new, promotes maintenance of a coordination of certificates, liquidation of repetitions and cancellation of out-of-date norms, promotes an appropriate choice most effective remedies of regulation of public relations.

New in classification of legal acts of the executive authority it is possible to allocate the division of certificates offered J.N.Starilovym into kinds depending on a functional role and value of the certificate of management. Certificates are carried to such kinds: 1) directed on a supply with information of activity of the state bodies; 2) establishing modes of forecasting and modelling of development of system of the government, the state bodies, government standards; 3) directed on the decision of questions of planning; 4) realising functions of the organisation; 5) containing elements rasporjaditelstva; 6) providing a management, and also the general management, i.e. establishing supervising rules; 7) carrying out coordination function; 8) carrying out of supervision regulating an order and the control in various branches and spheres; 9) carrying out regulating funk - 12

tsiju.

Certainly, the presented classification of legal acts of the state executive authority is original under the maintenance. Here each point specifies in the certain internal maintenance of a concrete kind of the certificate of management. It is possible to join offered opinion, as it reflects one of the parties of existence of operating legal acts of the state executive authority.

It is expedient to analyse also classification of legal acts in the foreign states. Unusual division of certificates of the executive authority into kinds can be observed in Federal Republic Germany. Here there are differentiating signs according to which certificates share on kinds:

I. Depending on the maintenance: enacting (ordering, forbidding, resolving, refusing, limiting, cancelling), [460] establishing, pravoustanavlivajushchie (public pravoustanavlivajushchie, private pravoustanavlivajushchie), solving disputes.

2. Depending on action concerning the mentioned person: burdensome, favouring.

3. Depending on degree of coherence the right: substantial, frame.

4. Depending on assistance of the addressee: dependence on the administrative act of the same department (independent, dependent), dependence on the administrative act of other department (independent, dependent), not demanding the assistance, demanding assistance.

5. Depending on action in time: single, constant.

6. Depending on the form: with the free form, with the ordered form.

7. Depending on completeness of regulation: the partial administrative act, the full administrative act.

8. Depending on finality of the decision: the preliminary administrative act, the definitive administrative act [461].

Some positions of the offered qualification can be borrowed for the theory of legal acts of Bank of Russia. For example, division of the right certificates under the maintenance on: pravotvorcheskie certificates of Bank of Russia (normative acts of Bank of Russia), on enacting (for example, the certificates published in process to licensing by Bank of Russia); the certificates which are resolving disputes (for example, certificates about licence withdrawal).

However, taking into consideration the division of legal acts offered in the Russian legal science, it is possible to come to conclusion that legal acts of the Central bank of the Russian Federation on the basis of their legal signs are divided by the legal nature. For classification of legal acts of the Central bank of the Russian Federation it is represented proved and perspective to select criterion of their legal nature (maintenance). So, depending on their nature (maintenance) legal certificates-documents of the Central bank of the Russian Federation 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).

The question of the characteristic of kinds of each legal act of the Central bank of the Russian Federation demands steadfast consideration. Earlier scientific maintenances of concepts of the legal acts specified below kinds in details were not explained and was not established scientific definirovanija the specified concepts. In the dissertation the formulation of definition of concepts of legal acts of the Central bank of the Russian Federation on the basis of positions of jurisprudence and practical pravotvorcheskoj activity is undertaken.

Under instructions as the kind of the legal act published by the Central bank of the Russian Federation, it is necessary to understand the standard legal act establishing separate rules on questions, carried to the competence of Bank of Russia, calculated on long or constant application and addressed to an uncertain circle of persons, and also containing positions about cancellation, change or addition of operating normative acts of Bank of Russia.

Position is the normative act accepted by the Central bank of the Russian Federation, establishing is system the rules connected among themselves on the questions carried to the competence of Bank of Russia.

Concerning instructions it is necessary to notice, that them are standard legal acts which are published for the purpose of the explanatory, specifications of details of application of positions of federal acts, other standard legal acts (including instructions, positions) concerning the competence of Bank of Russia.

The order - the legal act having individual character and directed on the organisation of any aspect of activity of the Central bank of the Russian Federation for the purpose of the decision of operative and other current questions pravoprimenitelnogo of not standard character. Administratively

The administrative documents published in territorial establishments of Bank of Russia, orders and orders [462] are.

The conclusion - individual (pravoprimenitelnyj) the legal act accepted by the Central bank of the Russian Federation concerning finding-out of conformity of activity of the credit organisations to is standard established requirements in bank sphere.

The instruction - individual (pravoprimenitelnyj) the legal act of Bank of Russia, addressed to the concrete subject, containing instructions on infringements (lacks) of activity of the credit organisations, term for their elimination, influence forced measures.

The following the most widespread among legal acts of Bank of Russia are telegrammes. C the points of view of the theory of administrative law of the telegramme - not the best form of existence of the legal act. The text in them is stated by cable style, with corresponding admissions and reductions, that basically is inadmissible for the normative act. However in practice bank activity demands the mobile legal act: for example change of the rate of refinancing (registration the rate) Bank Russia given about entering into the register or an exception of the register of the credit organisations [463], etc.

In any case the legislator obliges Bank of Russia to direct the normative acts in full in necessary cases to all registered credit organisations (item 7 of the Law on Bank of Russia). And refusal of telegrammes as legal act forms, there can be only after introduction in practice of a different way enough a fast finishing of the information: by an exchange of documents by means of an electronic communication facility, etc.

International treaties grow out of the coordination vol the various states which are taking part in them. Thus, dogovory represent the agreement of the states concerning the maintenance of contractual norms (i.e. the contract text) and concerning a recognition of such norms as legally obligatory for the state-participants of the contract [464]. The constitution of the Russian Federation provides, that international treaties of the Russian Federation are a component of its legal system. If the international treaty of Russia establishes other rules, than statutory international treaty rules (point 4 of article 15 of the Constitution of the Russian Federation) are applied.

For example, According to the message of Department external and public relations of Bank of Russia on November, 3rd, 2005 in the city of Beijing (the Chinese National Republic) within the limits of the tenth regular meeting of heads of the governments of Russia and China the Agreement (the Memorandum of mutual understanding) in the field of bank supervision between the Central bank of the Russian Federation is signed and Komis -

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siej on regulation of bank activity of China.

At signing of the given Agreement (Memorandum) the Central bank of the Russian Federation and the Commission on regulation of bank activity of China were guided by necessity of achievement of mutual understanding at information interchange with a view of effective performance of the functions and assistance of reliability and to stable functioning of bank systems of the Russian Federation and the Chinese National Republic. The reached mutual understanding also corresponds to recommendations of Basel committee about bank supervision about principles of realisation of the consolidated and all-round supervision and cooperation between bodies of bank supervision.

Signing of the given Agreement (Memorandum) answers the problems put by the Plan of action on realisation of positions of the Contract between the Russian Federation and the Chinese National Republic which including provides a number of positions concerning cooperation between banks of two countries and as a whole promotes expansion of business ties of the Russian credit organisations with the Chinese banks.

Classification of legal acts will make the legislation more accessible, especially for citizens that they could use the constitutional laws for protection of the interests. Further such state of affairs will play an important role in a choice of a kind of the legal act which is necessary for publishing as will influence quality pravotvorcheskogo the decision characterising degree of conformity of entered controlling instrument of revealed requirement, occurrence of additional circumstances communications C by introduction of this mechanism and their estimation from the point of view of the prospective purpose of regulation.

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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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