A number of subjects entrepreneurial activity has a special legal status. These include, in particular, banks and stock exchanges.

Banks are a special kind of organization. As subjects of business law, they are characterized by complex and multifaceted competence; their activities are carried out in the field of finance and monetary circulation; the subject of transactions and actions of banks will be cash, securities, precious metals, that is, everything that implements the function of payment, medium of circulation, credit.

The specificity of banks as subjects of business law is that all of them together constitute a system; Outside this system, bank activities are impossible.

A special role in the banking system belongs to the Central Bank; It is he who determines many parameters of banking activities and establishes uniform rules for conducting banking operations.

The legal basis for the activities of the Central Bank will be the Law “On the Central Bank Russian Federation(Bank of Russia)" (as amended by the Federal Law of April 26, 1995 No. 65-FZ); its legal status is complex: on the one hand, the Central Bank is endowed with state powers and acts as a non-departmental body, and on the other hand, it

1 On business entities with a special legal status, see: Martemyanov V.S. Economic law: Course of lectures. T. I. M.: BEK Publishing House, 1994. P. 92-113.

will be an economically independent institution. Exercising government powers, the Central Bank organizes monetary circulation, produces and issues banknotes, regulates the money supply, implements the functions of the reserve system, and carries out other regulatory functions not assigned to any other organization.

Based on the Law “On the Central Bank of the Russian Federation (Bank of Russia)”, the Central Bank registers the charters of commercial banks and maintains a register (Registration Book) of banks, issues and revokes licenses for banking operations.

To regulate the activities of commercial banks, the Central Bank sets economic standards for banks ( minimum size authorized capital; the maximum ratio between the size of the bank's authorized capital and the amount of its assets, taking into account risk assessment; bank liquidity indicators; minimum size required reserves, deposited in the Bank of Russia, etc.); determines the procedure for the formation of mandatory insurance funds to compensate for losses of clients; refinances commercial banks by providing them with term loans at the interest (discount) rate of the Central Bank, determines the conditions for providing loans secured by various assets.
It is worth noting that when regulating the activities of commercial banks and other credit institutions, the Central Bank establishes uniform rules for them accounting and statistical reporting, volumes and timing of submission of accounting and statistical reporting.

1 The Central Bank has separate property and carries out expenses at the expense of own income, bears responsibility for their obligations. The state is not responsible for the obligations of the Central Bank, and the Central Bank is not responsible for the obligations of the state. (The separate property of the Bank of Russia will be its funds, including its own gold and foreign exchange reserves and other material values. This property belongs to the Bank of Russia under the right of economic management. The sources of income of the Central Bank will be funds received from banking activities, from transactions with securities and other types of activities not prohibited by law. The Central Bank has accumulated significant funds from commercial banks.)

We should not forget that an important place in the activities of the Central Bank is occupied by supervision and control over compliance with banking legislation; Carrying out these functions, the Central Bank has the right to give mandatory instructions to credit institutions to eliminate violations of the law, and to apply sanctions provided for by law for violations of banking legislation.

The Bank of Russia will be an agent of the state for the implementation of its finances and conduct operations to carry out cash execution of the state budget.

The Central Bank, together with the Federal Treasury, is entrusted with the management and servicing of the state internal and external debt of the Russian Federation.

The Central Bank also carries out foreign economic functions, represents the interests of the Russian Federation in the central banks of other countries, international banks and other financial and credit organizations. The Central Bank issues licenses to open representative offices of foreign banks and other foreign financial and credit institutions on the territory of the Russian Federation, regulates the exchange rate of the ruble in relation to the monetary units of other states, manages the gold and foreign exchange reserves of the Russian Federation on its balance sheet, issues licenses for the implementation of commercial banks operations in foreign currency in the Russian Federation and abroad. If necessary, the Central Bank may introduce restrictions for banks on the volume of borrowing loans from abroad, as well as limit the level of interest rates on them within the framework of a single federal monetary policy.

The Bank of Russia is managed by the chairman of the bank and the board of directors. The Chairman of the Central Bank, without a power of attorney, acts on his behalf, represents the interests of the Bank in all Russian and foreign banks, enterprises, institutions and organizations, disposes, within the limits of their powers, of property, funds and other means of the Central Bank, concludes agreements, etc.

The Board of Directors of the Central Bank develops, together with the Government of the Russian Federation, the main directions of monetary

credit policy of the Russian Federation; determines the interest rates on Central Bank loans; creates and changes Central Bank funds; sets economic standards for commercial banks, etc.

The system of the Central Bank of Russia includes as its structural divisions territorial Main Directorates acting on behalf of the Central Bank within the powers granted to them. As part of the Main Directorates, cash settlement centers operate as structural divisions. The Central Bank and its territorial Main Directorates form a single centralized system. Let us note that the territorial Main Directorates of the Central Bank ensure the implementation of a unified federal policy in the field of monetary circulation, lending, settlements, cash transactions, they supervise the activities of commercial banks and other credit institutions operating on their territory. Within the limits of their competence, the territorial Main Directorates manage the property assigned to them and enter into agreements with individuals and legal entities on behalf of the Central Bank. The Central Bank also creates, as legal entities or structural divisions, the Russian Republican Association (directorate) for the collection of monetary proceeds, computer centers, a training center, as well as other institutions, enterprises and organizations to perform the tasks and functions of the Bank of Russia.

Commercial banks. Legal status commercial banks are determined by the Law “On Banks and Banking Activities in the RSFSR” (currently in force as amended by Federal Law No. 17-FZ of February 3, 1996) In conjunction with this law, a bank is understood as a commercial institution to which on the basis of a license issued The Central Bank of the Russian Federation has granted the right to attract funds from legal and individuals and on his behalf place them on the terms of repayment, payment and urgency, as well as carry out other banking operations. The competence of commercial banks is exercised exclusively in monetary financial sector. Commercial banks are prohibited from carrying out operations for the production and trade of material assets, and

also for insurance of all types, with the exception of insurance of currency and credit risks.

Commercial banks will be legal entities and can be created on the basis of any form of ownership.

Authorized capital of a commercial bank. The property base of commercial banks is formed by their authorized capital, as well as attracted funds from legal entities and individuals, funds received by banks in the form of income from banking activities, incl. directed to reserve, insurance and other funds formed by banks.

The authorized capital serves as security for the bank's obligations and is formed from the funds of at least three bank participants. Bank participants cannot be organizations that have an illiquid balance sheet or have been declared insolvent. It is worth saying that legislative and legal means cannot be used to form bank capital. executive bodies authorities, political organizations, as well as specialized public funds (including charitable ones) The formation of authorized capital through bank loans is not allowed. The authorized capital of banks should be formed only from their own funds, and not from borrowed funds. The share of a bank participant in the authorized capital should not exceed 35%. The founders of the bank cannot withdraw from the bank's membership during the first three years from the date of registration.

The authorized capital must be formed (paid) within a year after registration of a commercial bank; If this condition is not met, the bank’s registration is invalid and the license is revoked.

The Law “On Banks and Banking Activities in the RSFSR” determines the list of documents submitted for registering a bank and obtaining a license, as well as the requirements they must meet. The following must be submitted to the Central Bank:

A notarized application for registration and issuance of a license for non-banking transactions;

Constituent documents (memorandum of association, bank charter), protocol on the adoption of the bank charter and the appointment of the bank’s governing bodies;

Economic justification for creating a bank;

Data on bank managers - chairman (director), chief accountant, and their deputies.

The constituent agreement defines: the nature of the bank (joint stock, share, etc.); the size of the authorized capital and the share of the founders in this capital; responsibility of the parties for the fulfillment of obligations assumed under the contract, etc.

If the contributions of the founders of the bank cover only part of its authorized capital, the constituent agreement defines the conditions under which funds from shareholders (shareholders) will be raised; in this case, the constituent agreement is supplemented with signature sheets, on the basis of which the shareholders (shareholders) inform about their decision to participate in the creation of the bank. Subscription sheets serve as the basis for the transfer by shareholders (shareholders) of the contribution of funds established in the constituent agreement to the temporary settlement account of the founders; After registering the bank, the balance of funds from this account is transferred to the authorized capital of the bank1.

The constituent agreement and signature sheets of participants are signed by the founders - legal entities and individuals who initiated the creation of a commercial bank. The signatures of founders who are legal entities must be certified by the seals of these persons, and the signatures of founders who are individuals are subject to notarization.

The bank's charter must contain: the name of the bank and its location (postal address); list of banking operations to be carried out by the bank; the size of the authorized capital, reserve, insurance and other funds formed by the bank; an indication that the bank will be a legal entity and operates on a commercial basis; data on the bank’s management bodies, their structure, formation procedure and functions.

1 The founders and persons who subscribed to shares (shares) before the start of the constituent meeting must deposit into a temporary current account opened for the founders of a commercial bank in the cash settlement center of the Central Bank for the intended legal address bank, at least 10% of the nominal value of the shares (shares) to which they were based.
It is worth noting that the basis for opening such a temporary current account will be the foundation agreement.

The bank's charter is approved by its highest management body and must be notarized.

The minutes of the founding meeting must contain the decision on the creation of the bank, the approval of its charter, the election of the bank’s governing bodies and the audit commission. The protocol is subject to notarization.

The economic justification for the creation of a bank must contain the bank’s settlement balance at the end of its first year of operation, as well as a calculation of the bank’s income and expenses for the first year of its operation according to the forms approved Central Bank Russia.

Data on bank managers - the chairman (director), chief accountant, and their deputies are presented in the form of a certificate (in the form established by the Central Bank) containing passport data, past work history and a number of other information. The certificate is certified by the signature of the chairman of the bank's supervisory board.

In addition to the above documents, the Central Bank is also presented with:

A list of shareholders (shareholders) of the bank indicating their full names, postal addresses and telephone numbers, payment details, the size of the shares contributed, as well as shares in the authorized capital (information on the founders is separately highlighted) The list is certified by the signature of the chairman of the bank’s supervisory board;

Conclusion audit firm on the financial position of bank participants;

Income declarations for individuals - bank participants;

A certificate of actual debt on loans and balances in the accounts of legal entities and individuals accepted for servicing by the bank, indicating the bank in which they were previously serviced;

A copy of the payment document confirming the payment of the bank registration fee to the budget.

After registering a commercial bank, it is obliged, within a month from the date of registration, to become registered with the Main Directorate.

numerical center of the Central Bank of the Russian Federation.

The law contains important provisions related to licensing the activities of commercial banks. The license must indicate a list of operations that the person is entitled to perform. commercial Bank. Before the founders pay 50% of the authorized capital, the Central Bank issues a temporary license to the commercial bank, giving the right to open a correspondent account and accumulate contributions from shareholders (shareholders) to form the authorized capital.

After submitting documents indicating that the participants of the commercial bank have paid at least 50% of the authorized capital and the share of each participant in the paid part does not exceed 35%, instead of the temporary commercial bank, a license is issued that allows it to carry out transactions in rubles, provided for by its charter.

Commercial banks can be created with the attraction of foreign capital, with the participation of foreign investors. The activities of banks created with the participation of foreign capital, as well as foreign banks and their branches on the territory of the Russian Federation, are regulated by the Law “On Banks and Banking Activities in the RSFSR”. It is worth saying that for registration and licensing of commercial banks with foreign investment, foreign banks and their branches, foreign legal entities must additionally submit the following documents legalized in the prescribed manner:

The decision of the governing body of the foreign founder (participant) on his participation in the creation of a bank on the territory of the Russian Federation or on the opening of a branch;

Charter or other document confirming the status of a legal entity;

Written consent of the control body of the country of residence of the foreign founder (participant) for his participation in the creation of a bank on the territory of the Russian Federation or the opening of a branch.

When registering and licensing commercial banks with the participation of foreign citizens, additional confirmation is provided foreign bank about the citizen’s solvency and recommendations from at least two foreign legal entities or individuals with known solvency.

To ensure equal competitive conditions for all banks, the Central Bank of the Russian Federation may impose additional requirements on the founders of banks with foreign investment and non-resident banks regarding the minimum and maximum amounts of their authorized capital.

Commercial banks, incl. and with foreign investments, can carry out transactions in foreign currency in the Russian Federation and abroad. It is worth saying that to engage in this activity you need a special license from the Central Bank of the Russian Federation; it can be general, internal or one-time. A general license gives the bank the right to carry out a full or limited range of banking operations in foreign currency both on the territory of the Russian Federation and abroad; an internal license allows you to perform a full or limited range of banking operations in foreign currency on the territory of the Russian Federation; one-time - gives the right to carry out a specific banking transaction in foreign currency one-time.

To obtain a license, the following documents are submitted to the Central Bank:

A petition from the bank, which must reflect information about its activities from the date of registration, but not less than for one operational year (the petition indicates actual data on the bank’s compliance with liquidity standards established by the Central Bank, as well as information on the bank’s income and expenses for the reporting period period; personnel composition of the bank from the point of view of its readiness to carry out operations in foreign currency; technical equipment and preparedness of premises (communication lines, storage); information about clients wishing to make payments through the bank in foreign currency, commercial banks that have a general license and are ready to establish correspondent relations with this bank;

Audit report or auditor's report on the bank's activities for the last year;

Certificates confirming the qualifications of specialists;

List of clients ready to carry out transactions in foreign currency through this bank;

Conclusion of the regional Main Directorate of the Central Bank of the Russian Federation at the location of a commercial bank on the advisability of issuing a currency license to it.

The Law “On Banks and Banking Activities in the RSFSR” establishes the grounds for refusing to register commercial banks and issuing licenses to them. The Central Bank may refuse to register a commercial bank and issue a license to it if the constituent agreement and charter of the bank do not comply with the legislation in force in the Russian Federation, as well as if, according to the auditor’s conclusion, the financial position of the founders is unsatisfactory, threatening the interests of the bank’s depositors and creditors.

Commercial banks can open branches and representative offices in the Russian Federation and abroad. Several banks can open one representative office. Foreign banks can also, as already noted, open representative offices on the territory of the Russian Federation. Representative offices of foreign banks can open in the Russian Federation only with the permission of the Central Bank of the Russian Federation.

To open a representative office of a foreign bank, the following documents are required:

A written application from a foreign bank to the Central Bank of the Russian Federation outlining the purpose for which the bank requests to open a representative office;

An extract from the bank register or a document confirming the presence of permission to engage in banking activities, notarized and translated into Russian;

A duly certified copy of the permit from a government agency in the country where the bank is located to open a representative office abroad (if foreign legislation requires such a permit)

In addition to these documents, the Central Bank may require other information and documents.

A representative office is considered open in the Russian Federation from the date of issue of permission from the Central Bank to open it. The permit becomes invalid if the bank does not exercise the right to open a representative office within six months from the date of issue of the permit.

The representative office acts on behalf of and on behalf of the represented foreign bank and operates in accordance with Russian legislation. In accordance with Russian civil legislation, a representative office will not be a legal entity and cannot carry out commercial activities on its behalf, incl. banking, transactions. These transactions can only be carried out on behalf of and on behalf of the represented bank. The head of the representative office acts on the basis of a power of attorney from a foreign bank. Representative offices are traditionally created to establish contacts with banking and other business communities, as well as to conclude agreements on behalf of the represented bank.

Bank operations. Banks, incl. with foreign capital can carry out various banking operations and transactions in the Russian Federation.

Typical banking transactions would be:

Attracting deposits and providing loans;

Opening and maintaining accounts for clients and correspondent banks, incl. foreign;

Carrying out settlements on behalf of clients and correspondent banks1;

Cash service for clients;

Issuance of surety and bank guarantee, as well as other obligations for third parties, providing for execution in cash.

These types of banking activities will be the most common and occupy the largest share in the work of commercial banks. Along with them, banks also make other

1 Correspondent banks are understood as banks interacting with each other in order to provide settlements to clients.

operations and transactions: issue, buy, sell and store payment documents and securities (checks, letters of credit, bills, shares, bonds, etc.), carry out other operations with them; acquire rights of claim for the supply of goods and provision of services, assume the risks of fulfilling such claims, collect these claims (forfeiting), and also carry out these operations with additional control over the movement of goods (factoring); buy and sell currency in cash and in accounts and deposits with domestic and foreign legal entities and individuals; buy and sell precious metals, stones, and products made from them in the Russian Federation and abroad; attract and place precious metals in deposits, carry out other operations with these values ​​in accordance with international banking practice; carry out trust operations (raise, place funds and manage securities on behalf of clients); provide brokerage and consulting services; carry out leasing operations; finance capital investments on behalf of the owners or managers of invested funds, as well as at the expense of own funds jar.

The above operations can be carried out both in rubles and in foreign currency.

Other operations can be carried out by banks only with permission from the Central Bank of the Russian Federation.

The volume of operations and transactions that a bank can carry out is determined by its charter and license issued by the Central Bank of the Russian Federation.

Certain banking operations may be performed by institutions that are not banks. Such credit institutions are subject to the law “On Banks and Banking Activities in the RSFSR”, unless otherwise provided by this law.

Relationships with clients. Relations between commercial banks and clients are based on a contractual basis. Interest rates and the amount of commission on bank operations are established by agreement of the parties. In the event of client insolvency, banks can take measures to prevent

covered by Article 34 of the Law “On Banks and Banking Activities in the RSFSR”. It is worth saying that in order to ensure the financial stability of commercial banks, they are required to deposit required reserves with the Central Bank, based on the required reserve standards established by the Central Bank. As already noted, the Central Bank establishes a number of mandatory economic standards for commercial banks: the minimum amount of authorized capital; the maximum ratio between the size of the authorized capital and the amount of its assets; indicators of balance sheet liquidity, that is, the possibility of repaying all their obligations in the event of liquidation of the bank; the minimum amount of required reserves placed with the Central Bank; maximum risk per borrower; limiting the size of currency and exchange rate risks; restrictions on the use of attracted deposits for the acquisition of shares of legal entities, etc.

Commercial banks are required to publish annual balance sheets in the form established by the Central Bank and within the deadlines established by it. The activities of commercial banks are subject to annual audits.

Commercial banks, incl. with foreign investments will pay taxes on income; they are also subject to the rules on the sale of part of foreign exchange earnings and other requirements established for commercial organizations.

Exchanges. An exchange is understood as an institution in which exchange trading is carried out (purchase and sale of goods, valuable papers, currencies)

Exchange trading is a public trading, it is held in a predetermined place, at a certain time and according to the rules established by the exchange.

There are commodity and stock exchanges.

The legal status of commodity exchanges is determined by the law “On commodity exchanges and exchange trading” dated February 20, 1992 No. 2383-1.

On the commodity exchange, goods determined by generic characteristics are sold and bought, as well as consumer goods sold according to standards and samples.

The activities of a commodity exchange are associated with goods defined by generic characteristics, which are sold in batches, that is, in bulk.

Individually defined things will not be exchange goods.

A special feature of the legal status of the exchange is that the exchange does not participate in actual exchange trading and does not enter into any transactions during trading.

The exchange only organizes and regulates exchange trading.

Exchange trading is carried out through the use of special mechanisms (participation in trading by intermediaries; trading by auction method; subordination of trading participants to special rules of exchange trading; application of special rules on exchange transactions)

Because the stock exchange will be the place major transactions with large quantities of goods, it forms wholesale market. There will be supply and demand on the exchange, which allows you to objectively set the price of a specific exchange commodity.

Exchange trading reduces the risks of random factors influencing pricing, artificially inflating or lowering prices through collusion, spreading false rumors, etc. Transparency and publicity of exchange trading contribute to the objective expression of socially necessary costs for the production of goods and allow the exchange to perform the function of price quotation, that is, establishing an objective price level for a given product on a regional or whole country scale, at a given time, taking into account all factors affecting the price1 .

The commodity exchange will be a legal entity. The share of the founder, member of the exchange in its authorized capital cannot exceed 10%, from which it follows that there must be at least ten founders and members of the exchange.

Exchange members - persons participating in the formation of the authorized capital of the exchange or contributing membership fees and other targeted contributions into the property of the exchange. Exchange members have the right to participate in the management of the affairs of the exchange, receive dividends, and participate in exchange trading as exchange members (Article 14 of the Law of the Russian Federation “On Commodity Exchanges and Exchange Trading”)

The founders of the exchange cannot be government and administrative bodies; banks and other credit institutions; insurance and investment companies and funds; public, religious associations and charitable foundations.

The creation of an exchange as a legal entity is carried out according to general rules; State registration of exchanges is carried out in the usual manner, but licensing of commodity exchanges is carried out by the Commission on commodity exchanges under the Ministry of the Russian Federation for antimonopoly policy and entrepreneurship support. By the time of applying for a license, at least 50% of the declared amount of deposits must be contributed to the authorized capital of the exchange. It is worth saying that in order to obtain a license the rules must be presented stock trading; the charter of the exchange, which must contain information about the maximum number of members of the exchange, the procedure for admission to membership of the exchange, suspension and termination of membership; procedure for resolving disputes between exchange trading participants, etc. Refusal to issue a license can be appealed in court.

Exchange governing bodies. The supreme body of the exchange will be the meeting of exchange members. The procedure for becoming a member of the exchange is determined by the constituent documents of the exchange. Membership is confirmed by a certificate issued by the exchange. Members of the exchange are divided into full and incomplete. It is worth saying that full members of the exchange have a large number of votes at the general meeting.

Organization of exchange trading. Exchange trading is carried out, as already noted, in the form of public trading. Exchange transactions are traditionally carried out through brokers, who, for a fee, acquire the rights to participate in exchange trading and will be their permanent participants.

Transactions can be made by members of the exchange who are not brokers, as well as one-time visitors, while full members of the exchange have the right to participate in trading in all sections of the exchange, and partial members only in certain sections. One-time visitors can participate in transactions only during the day for which they acquired the right for a fee, and they can make only one type of transaction - transactions with real goods.

Relations between subjects entering into stock exchange transactions through brokers, and the relations of brokers with clients are regulated by contracts, however, the exchange on which transactions are concluded can also regulate the relationship of exchange intermediaries and their clients, apply sanctions in the prescribed manner to exchange intermediaries who violate the rules established by the exchange for the relationship of exchange intermediaries with their clients (Article 25 of the Law) This, in particular, can occur if brokers violate the rules for processing transactions established on a given exchange.

Certain issues regarding the activities of brokers are resolved by law. Thus, in conjunction with Article 24 of the Law “On Commodity Exchanges and Exchange Trading,” brokers are required to keep records of transactions for each client and store this information for 5 years from the date of the transaction. At the request of the Commodity Exchange Commission, the broker is obliged to provide it with information about the completed transaction.

The rules governing exchange trading, methods of making and processing transactions are adopted by each exchange independently, taking into account the capabilities of the exchange to provide trading participants with certain services. The respectability of the exchange and its attractiveness in the eyes of clients depends on how perfect these rules are. At the same time, the Law “On Commodity Exchanges and Exchange Trading” establishes a number of mandatory requirements that must be provided for in the rules of exchange trading on all commodity exchanges. This, in particular, is the procedure for conducting exchange trading; types of transactions made on the stock exchange; names of product sections; list of the main structural divisions of the exchange; the procedure for informing exchange trading participants about upcoming exchange trading; procedure for registration and accounting of exchange transactions; procedure for quoting prices of exchange goods; the procedure for mutual settlements between exchange members and other participants in exchange trading when concluding exchange transactions; measures to control the pricing process on the stock exchange in order to prevent sharp daily increases or decreases in price levels, artificially inflating or decreasing prices, collusion or the spread of false rumors in order to influence prices; list of violations for which the exchange collects fines from participants

exchange trading, as well as the amount of fines and the procedure for their collection (Article 18)

A number of other requirements have also been established. It is worth saying that in order to ensure forward, futures and options transactions, the exchange is obliged to organize settlement services by creating settlement institutions (clearing centers) or by concluding an agreement with a bank or other credit institution on the organization of settlement (clearing) services (Article 28) Clearing centers with similar functions can be created independently of exchanges (clauses 2 and 3 of Article 28). It is worth saying that to resolve disputes between trading participants, exchanges can create arbitration commissions and approve regulations on them. At the request of a participant in exchange trading, the exchange is obliged to organize an examination of the quality of real goods sold on the exchange.

The exchange has the right to independently establish deductions from commissions received by exchange intermediaries as remuneration for intermediary operations on the exchange: fees, fines and other payments (Article 29)

The exchange may participate in foreign economic activity(v. 31)

In connection with the important role of commodity exchanges in organizing economic turnover, the law provides for state regulation of their activities, which is carried out by the Commodity Exchange Commission. This commission is entrusted with: issuing licenses for organizing exchange trading; licensing of exchange intermediaries; control over compliance with legislation on exchanges; consideration of complaints from exchange trading participants about violations of the law.

The Commodity Exchange Commission has the right to issue mandatory instructions to exchanges to change constituent documents, exchange trading rules, decisions of exchange management bodies, etc. It is worth noting that it can also issue orders to exchange intermediaries to eliminate violations in their activities, and has the right to apply sanctions to the exchange and exchange intermediaries for violating the law and untimely execution of the Commission’s orders.

The Commodity Exchange Commission has the right to appoint a state commissioner to the exchange; organize in agreement with

authorities financial control Russian Federation audits of the activities of exchanges and exchange intermediaries; require exchanges, settlement institutions (clearing centers) and exchange intermediaries to submit accounting documentation; send to arbitration court materials for application to exchanges and their members provided by law sanctions.

The functions of the state commissioner appointed by the Commission are to directly monitor compliance by the exchange and exchange intermediaries with the legislation (Article 37)

Stock exchanges. Stock exchanges include organizations established to ensure the circulation of securities.

The stock exchange can only engage in organizing the circulation of securities; it has no right to engage in other activities. This also applies to investment activities, the stock exchange itself has no right to engage in investment activities.

Stock exchanges are created in the form of non-profit partnerships and organize trading only between exchange members. Other participants in the securities market can carry out transactions on the stock exchange through the intermediation of exchange members.

The stock exchange's income (from membership fees, transaction fees, and others) must ensure the break-even of its activities. The material was published on http://site

Members of the stock exchange can be professional participants in the securities market, carrying out the activities specified in Chapter 2 of the Federal Law “On the Securities Market”. The stock exchange has the right to establish mandatory requirements for investment institutions necessary to become members of the exchange, as well as qualification requirements for representatives of exchange members at exchange trading. The stock exchange independently develops the procedure for making transactions during exchange trading, the procedure for reconciling settlements for transactions concluded on the exchange.

Functions stock exchanges can be carried out by commodity and currency exchanges; for these purposes they create special structural divisions.

Credit organisation- a legal entity that, in order to make a profit as the main goal of its activities, on the basis of a special permit (license) of the Central Bank of the Russian Federation (Bank of Russia), has the right to carry out banking operations provided for by the Federal Law “On Banks and Banking Activities” (hereinafter referred to as the Law on Banks ). A credit organization is formed on the basis of any form of ownership as a business company.

Bank- a credit institution that has the exclusive right to carry out the following banking operations in aggregate: attracting funds from individuals and legal entities into deposits, placing these funds on its own behalf and at its own expense on the terms of repayment, payment, urgency, opening and maintaining bank accounts of individuals and legal entities.

Non-bank credit organization- a credit institution that has the right to carry out certain banking operations provided for by the Banking Law. Acceptable combinations of banking operations for non-bank credit institutions are established by the Bank of Russia.

Currently, the banking system of the Russian Federation includes the following types of credit institutions: settlement (clearing) non-profit organizations and depository and credit non-profit organizations. At the same time, 95% of credit institutions in the Russian Federation are banks.

Foreign bank- a bank recognized as such under the laws of the foreign state in whose territory it is registered.

According to the law, unions and associations of credit organizations, banking groups and bank holding companies can be created.

Unions and associations– non-profit organizations created to protect and represent the interests of their members, coordinate their activities, develop interregional and international relations, satisfy scientific, information and professional interests, develop recommendations for the implementation of banking activities and solving other joint problems of credit organizations. Unions and associations of credit organizations are prohibited from carrying out banking operations. Unions and associations of credit organizations are created and registered in the manner established by the legislation of the Russian Federation for non-profit organizations (Federal Law “On Non-Profit Organizations”).

Banking group- an association of credit organizations that is not a legal entity, in which one (parent) credit organization directly or indirectly (through a third party) has a significant influence on decisions made by the management bodies of another (other) credit organization (credit organizations). The parent credit institution is obliged to notify the Bank of Russia in the prescribed manner about the formation banking group.

Bank holding - an association of legal entities that is not a legal entity with the participation of a credit institution (credit institutions), in which a legal entity that is not a credit institution (the parent organization of a bank holding company) has the ability to directly or indirectly (through a third party) have a significant influence on decisions made by the authorities management of the credit organization (credit organizations).

For the purposes of the Banking Law, significant influence is understood as the ability to determine decisions made by the management bodies of a legal entity, the conditions for its business activities due to participation in its authorized capital and (or) in accordance with the terms of the agreement concluded between legal entities that are part of the banking group and (or) into a banking holding company, appoint a sole executive body and (or) more than half of the composition of the collegial executive body of a legal entity, as well as the ability to determine the election of more than half of the board of directors (supervisory board) of a legal entity.

The parent credit organization of a bank holding company is obliged to notify the Bank of Russia in the manner established by it about the formation of a bank holding company.

A commercial organization that, in accordance with the Law on Banks, can be recognized as the parent organization of a bank holding company, in order to manage the activities of all credit organizations included in the bank holding company, has the right to create a management company of the bank holding company. In this case, the management company of the bank holding company performs the duties that, in accordance with the Banking Law, are assigned to the parent organization of the bank holding company.

For the purposes of the Banking Law, a management company of a bank holding company is recognized as a business company whose main activity is managing the activities of credit institutions included in the bank holding company. The management company of a bank holding company has no right to engage in insurance, banking, manufacturing or trading activities. A commercial organization that, in accordance with the Banking Law, can be recognized as the parent organization of a bank holding company, must be able to determine decisions management company bank holding company on issues within the competence of the meeting of its founders (participants), including its reorganization and liquidation.

Legal status of credit institutions

Legal status (legal status) credit institutions is a conglomerate (i.e. an internally stable set of properties), which includes the following elements: the procedure for creation (establishment, state registration and licensing), the procedure for reorganization, bankruptcy and liquidation, corporate name and location, constituent documents, charter capital, management bodies, accounting, reporting and auditing procedures, legal regime of bank secrecy. All these points are regulated by the Law on Banks, other federal laws and acts of the Bank of Russia.

The procedure for creating a credit organization... A credit organization can only be created in the form of a business company (OJSC, CJSC, LLC, ALC). Founders may be persons who are not prohibited by law. The founders do not have the right to resign from the founders during the first 3 years from the date of registration. The legal entity - the founder must have a stable financial position, sufficient own funds to contribute to the authorized capital of the limited liability company, operate for at least 3 years, and fulfill obligations to budgets of all levels for the last 3 years. The founder credit organization must be financially stable during the last 6 months preceding the date of submission of documents for state registration and licensing.

Creation stages:

Preliminary – approval of the name of the future company with the Central Bank of the Russian Federation;

Preparation and signing of constituent documents – constituent agreement and (or) charter.

State registration c.o. – no later than 1 month. After signing the constituent agreement, the founders send to the TU of the Central Bank of the Russian Federation the documents specified in the Instructions of the Central Bank of the Russian Federation dated January 14, 2004. No. 109-I.

Obtaining a license to carry out banking activities.

Procedure for reorganization, bankruptcy and liquidation. State registration of a credit organization in connection with its liquidation and state registration of a credit organization created through its reorganization are carried out in the manner prescribed by the Federal Law “On state registration legal entities and individual entrepreneurs,” taking into account the specifics established by the federal law “On Banks” and the regulations of the Bank of Russia adopted in accordance with it. Information and documents necessary for state registration of a credit organization in connection with its liquidation and state registration of a credit organization created through reorganization are submitted to the Bank of Russia. The list of specified information and documents, as well as the procedure for their presentation, is determined by the Bank of Russia.

The Bank of Russia, within 15 days from the date of revocation of a credit organization’s license to carry out banking operations, is obliged to apply to the arbitration court with a demand for the liquidation of the credit organization (hereinafter referred to as the Bank of Russia application for the forced liquidation of the credit organization), except if by the day of revocation of the said license, the credit organization has signs of insolvency (bankruptcy) provided for by the Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions”.

If, by the day of revocation of the license to carry out banking operations, the credit organization has signs of insolvency (bankruptcy), provided for by the Federal Law "On the Insolvency (Bankruptcy) of Credit Institutions", or the presence of these signs is established by the temporary administration appointed by the Bank of Russia to manage the credit organization after the day of revocation credit organization with the specified license, the Bank of Russia applies to the arbitration court with an application to declare the credit organization insolvent (bankrupt) in the manner established by the Federal Law “On the Insolvency (Bankruptcy) of Credit Organizations.”

Business name and location. A credit institution must have a full corporate name and has the right to have an abbreviated corporate name in Russian. A credit institution also has the right to have a full corporate name and (or) an abbreviated corporate name in the languages ​​of the peoples of the Russian Federation and (or) foreign languages. The corporate name of a credit organization in Russian and the languages ​​of the peoples of the Russian Federation may contain foreign borrowings in Russian transcription or in transcriptions of the languages ​​of the peoples of the Russian Federation, with the exception of terms and abbreviations that reflect the legal form of the credit organization. The corporate name of a credit organization must contain an indication of the nature of its activities by using the words “bank” or “non-bank credit organization.” Other requirements for the corporate name of a credit organization are established by the Civil Code of the Russian Federation.

Location and postal addresses of governing bodies and separate divisions must be specified in the charter of the credit institution. In case of change:

location (mailing address) of the company;

name of the locality, street name, house number;

branch location –

Special registration of changes to the charter is required. In addition, in the case where a change in the location address (postal address) is associated with a change in the locality (name of the locality), a replacement of the s.c. license is also required. and is registered with the Bank of Russia. In other cases, a license replacement is not required, and the registration of changes is carried out by the TU of the Central Bank of the Russian Federation.

Credit institution within 1 month. after receiving registered changes to the charter from the Central Bank of the Russian Federation, it must:

replace the seal, indicating the new location of the company;

notify all known creditors in writing;

Information about the new location (mailing address) is published in the Bulletin of the Bank of Russia.

Constituent documents. A credit organization has constituent documents provided for by federal laws for a legal entity of the appropriate organizational and legal form. A credit institution is required to register all changes made to its constituent documents. The documents provided for by paragraph 1 of Article 17 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs” and regulations of the Bank of Russia are submitted by the credit organization to the Bank of Russia in the manner established by it.

Authorized capital. The authorized capital of a credit organization is made up of the amount of deposits of its participants and determines the minimum amount of property that guarantees the interests of its creditors. The minimum amount of the authorized capital of a newly registered bank on the day of filing an application for state registration and issuance of a license to carry out banking operations is established in the ruble equivalent of 5 million euros. The minimum amount of the authorized capital of a newly registered non-bank credit organization on the day of filing an application for state registration and issuance of a license to carry out banking operations is established in the ruble equivalent of 500 thousand euros.

The Bank of Russia establishes a maximum amount of property (non-monetary) contributions to the authorized capital of a credit organization, which cannot exceed 20% of the authorized capital of a credit organization, as well as a list of types of property in non-monetary form that can be contributed to pay for the authorized capital.

Raised funds cannot be used to form the authorized capital of a credit organization.

Controls. The management bodies of the credit institution, along with general meeting its founders (participants) are the board of directors (supervisory board), the sole executive body and the collegial executive body.

The current management of the activities of a credit organization is carried out by the sole executive body and the collegial executive body.

The sole executive body, its deputies, members of the collegial executive body (hereinafter referred to as the head of the credit organization), the chief accountant of the credit organization, the head of its branch are not entitled to hold positions in other organizations that are credit or insurance organizations, professional participants in the securities market, as well as in organizations engaged in leasing activities or that are affiliated with a credit institution that employs its director, chief accountant, or head of its branch.

The procedure for maintaining accounting, reporting and auditing. General rules for accounting, presentation of financial and statistical reporting, and preparation of annual reports by credit institutions are established by the Central Bank of the Russian Federation, taking into account international banking practice. Currently, the Regulation of the Central Bank of the Russian Federation dated December 5, 2002 is in force. “On the rules of accounting in credit institutions located on the territory of the Russian Federation.”

The reporting of a credit institution is subject to an annual audit by an organization licensed for this activity. For organizations that are auditors of bank holding companies and groups, an additional requirement has been established - audit activity for at least 2 years.

Banking secrecy. Compliance with the confidentiality of banking information is one of the main principles of the company's activities. worldwide. The legal regime of bank secrecy is established by Art. 857 of the Civil Code of the Russian Federation, the Law on the Central Bank, the Law on Banks. The bank secrecy regime must be observed indefinitely.

Credit institutions guarantee non-disclosure of the following information to third parties:

information about the bank account and bank deposit;

information about account transactions;

information about bank clients, correspondent banks, etc.

Information constituting banking secrecy can only be provided to the clients themselves or their representatives. State bodies and their officials such information is provided exclusively in cases and in the manner prescribed by law.

In the event of a credit institution unlawfully disclosing information constituting a bank secret, the client whose rights have been violated may demand compensation from the bank for the losses caused.

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Legal status of credit banking organizations

The concept of a credit institution. In accordance with Art. 1 of the Law on Banks, a credit organization is a legal entity that, in order to make a profit as the main goal of its activities, on the basis of a special permit (license) of the Bank of Russia, has the right to carry out banking operations provided for by the said Law. A credit organization is formed on the basis of any form of ownership as a business company.

The following features follow from the legal definition of a credit organization:

1. a credit organization is a legal entity (Article 48 of the Civil Code), and a commercial organization (clause 1 of Article 50 of the Civil Code);
2. a credit organization can be created in a strictly defined organizational legal form- economic company ( joint stock company or limited liability companies);
3. a credit organization can be formed on the basis of any form of ownership, i.e. state, private, or other form of ownership;
4. To carry out banking operations, a credit institution must obtain a license from the Bank of Russia in the prescribed manner.

Credit organizations are divided into banking and non-banking.

Bank is a credit organization that has the exclusive right to carry out the following banking operations in aggregate: attracting funds from individuals and legal entities on deposit, placing these funds on its own behalf and at its own expense on the terms of repayment, payment and urgency, opening and maintaining bank accounts of individuals and legal entities.

A non-bank credit organization (NCO) has the right to carry out certain banking operations. In our opinion, it is necessary to determine the status of non-bank credit organizations at the level of federal laws.

In this regard, two general remarks need to be made. The Law on Banks (Article 1) defines a credit organization as a legal entity whose main goal is to make a profit. It turns out that from the point of view of the Law, not only a bank, but also not banking organization are commercial organizations. However, non-banking organizations can be established in the form of a non-profit organization (for example, Pension Fund RF).

Here a formal contradiction is revealed between the Banking Law and individual federal laws. In addition, the Law on Banks directly states: “A credit organization is formed on the basis of any form of ownership as a business company.” If in relation to a bank such a mandatory norm is to some extent understandable, then difficulties arise in the case of a non-bank credit organization. The law excludes the possibility of creating a non-banking organization in a different organizational and legal form.

Types of credit institutions. Banks (credit banking organizations) can be divided into different kinds. First of all, it is necessary to distinguish between issuing and commercial banks. In the Russian Federation, the issue of funds is the exclusive right of the Bank of Russia.

Taking into account the nature of operations, universal and specialized banks are distinguished. The former carry out most of the well-known banking operations and transactions, and their activities are not limited to a specific industry, region, or clientele. On the contrary, specialized banks serve a specific group of clients (for example, small and medium-sized businesses) and a specific industry (for example, aviation, automotive).

Depending on the area of ​​service, banks are divided into local, national and international. The vast majority of banks in the Russian Federation are national. TO international banks should include Vnesheconombank, Vneshtorgbank, etc.

Using such a criterion as the presence (absence) of branches, banks can be divided into non-branch and multi-branch.

Depending on the formation of the authorized capital, national banks (without foreign capital), banks with foreign capital (joint) and foreign banks are distinguished.

Taking into account the form of ownership, we can name public and private banks. By virtue of Art. 2 of the Law on the Central Bank, the authorized capital and other property of the Bank of Russia are federal property.

There are other types of banks. For example, taking into account the size of their own funds, large, medium and small banks are distinguished.

Currently, Russian legislation knows three types of non-bank credit organizations:

1. settlement non-bank organizations;
2. non-bank credit collection organizations;
3. non-bank credit organizations carrying out deposit and credit operations.

Each of these types of NPOs has its own characteristics of legal status and legal regulation.

Legal capacity of credit institutions. The category “legal capacity of a credit banking organization” is controversial in educational and scientific literature. There are three points of view about the nature of the bank's legal capacity. Some scientists believe that the bank has general legal capacity, others conclude that the bank has special legal capacity, and others see the legal capacity as having an exceptional character.

Moreover, the authors of different points of view cite references to the same provisions as compelling arguments for their theoretical position. As a rule, banking legal capacity is characterized by the following features:

1. banks have the exclusive right to carry out banking activities;
2. prohibition of other organizations from carrying out this activity;
3. prohibition of banks to engage in activities in the sphere of production, trade and insurance;
4. banks carry out banking activities from the moment they receive a license;
5. Each bank has the right to carry out banking operations that are specified in its banking license. However, the first, third and fourth signs allow some scientists to classify banking legal capacity as special.

The Civil Code (Article 49) distinguishes between general and special legal capacity. By general rule commercial organizations have general legal capacity. The exception is unitary enterprises, as well as other types of organizations provided for by federal law.

Judicial practice proceeds from the fact that some commercial organizations are endowed with special legal capacity. So, in accordance with paragraph 18 of the resolution of the Plenum Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 banks, insurance organizations, investment institutions are classified as legal entities with special legal capacity. However, it is not clear why these entities do not have general legal capacity. We can only make our own assumptions on this matter.

The first is the presence of a special permit (license) to engage in a certain type of activity. But, in our opinion, the mere fact of obtaining a license to carry out banking, insurance, and investment activities does not fundamentally affect the nature of the legal capacity of a commercial organization. Otherwise, it would be necessary to recognize that all legal entities (regardless of their affiliation with commercial and non-profit organizations) operating on the basis of licenses have special legal capacity.

The second is the existence of prohibitions on engaging in certain types of activities. The Law on Banks (Article 5) prohibits credit organizations from engaging in production, trade and insurance activities. These prohibitions apply to insurance organizations and investment institutions.

We believe that these prohibitions cannot be considered as a basis for classifying any organization as a legal entity with special legal capacity. Legal prohibitions are a restriction of the legal capacity of a legal entity in the manner and cases provided for by law (clause 2 of Article 49 of the Civil Code). These restrictions apply to both general and special legal capacity of legal entities.

To distinguish between general and special legal capacity of legal entities, it is necessary to use a formal legal criterion - a direct indication of the law. In order to avoid disputes and conflict situations, the special legal capacity of certain types of commercial organizations must be legally enshrined in the law.

In itself, the conclusion about the special legal capacity of credit banking organizations is legitimate, but only in the context of their entrepreneurial activities. At the same time, limit the right of banks to enter into transactions aimed at maintaining their activities (purchase and sale of property, rental of non-residential premises, etc.), Art. 49 of the Civil Code does not provide. Otherwise, there is a substitution of legal concepts. Outside of business activities, we can talk about the general legal capacity of all commercial organizations.

There is a widespread opinion in the literature that a commercial bank is a special subject, since its legal status is characterized by duality. Thus, A.V. Popov writes that a bank is a subject of civil law participating in turnover. At the same time, the bank is included in the management structure of the country's credit and financial system and is endowed with public functions as an agent (for example, in the field of currency control).

Indeed, by virtue of paragraph 3 of Art. 22 of the Law on Currency Regulation, currency control agents are authorized banks reporting to the Bank of Russia. In the foreign exchange sector, they (agents) monitor compliance current legislation committed by their clients (residents and non-residents) foreign exchange transactions, as well as documents sent by their clients to obtain permission (license) to carry out capital foreign exchange transactions. At the same time, commercial banks do not have the right to apply penalties to violators of currency legislation. Currency control authorities are vested with this right.

Hence, authorized banks have elements of public power and exercise control over the activities of other subjects of civil law. How to evaluate this situation? Of course, if we fight for the purity of the civilistic type of regulation, the answer is clear: it is necessary to eliminate this dual nature of banks. On the contrary, if you turn once again to face market economy, the specified combination of private law and public law principles is the desired result social progress society; what law should strive for.

The procedure for creating a credit organization. The named order is special order and is mainly applied to the establishment of banks. It (the procedure) is a set of sequential actions (legal facts) aimed at obtaining the right to carry out banking activities.

Features of the creation of credit organizations are carried out in the requirements:

1. to the founders;
2. size, structure, form and timing of formation of the authorized capital;
3. management;
4. documents submitted for state registration;
5. registration and licensing procedure.

These and other features are formulated in the Law on Banks, as well as in the Bank of Russia Instruction No. 109-I dated January 14, 2004 “On the procedure for the Bank of Russia to make decisions on state registration of credit organizations to issue licenses for banking operations” (as amended by dated December 11, 2006 No. 1754-U)1.

Let us briefly consider the main stages of the procedure for creating a credit organization.

The first stage is making a decision to create a credit organization, approving the charter and signing the constituent agreement in accordance with general provisions laws on business companies (Article 10 of the Law on Banks).

Besides these general documents The founders of the credit organization (legal entities and individuals) attach additional documents to the application for state registration and issuance of a license to carry out banking operations:

1. business plan of a credit institution, drawn up in accordance with established requirements;
2. documents confirming the sources of origin of funds and testifying to the reliability financial statements founders of a credit organization;
3. questionnaires of candidates for the positions of managers of a credit organization, chief accountant, deputy chief accountant of a credit organization according to the form;
4. certified copies of documents confirming the ownership (lease right) of the founder or other person to the completed building (premises) in which the credit institution will be located;
5. documents necessary for preparing a conclusion on the credit institution’s compliance with the requirements established by Bank of Russia Regulation No. 199-P dated October 9, 2002 “On the procedure for conducting cash transactions in credit institutions on the territory of the Russian Federation”;
6. conclusion of the federal antimonopoly body on the approval of the issue of creating a credit organization and on compliance with antimonopoly rules;
7. and other documents.

The formation of the authorized capital of a credit organization is the next stage of its creation. The authorized capital of a credit organization is made up of the amount of deposits of its participants and determines the minimum amount of property that guarantees the interests of its creditors. In accordance with Art. 5 of the Law on Banks, the minimum amount of the authorized capital of a newly registered bank at the time of filing an application for state registration and issuance of a license to carry out banking operations is established in the ruble equivalent of 5 million euros, the minimum amount of the authorized capital of a newly registered non-bank credit organization - in the amount of the ruble equivalent of 500 thousand euros.

Another feature of the formation of the authorized capital of a credit organization is manifested in the composition of the property.

A contribution to the authorized capital of a credit organization can be in the form of:

• funds in the currency of the Russian Federation;
• funds in foreign currency;
• a building (premises) owned by the founder of a credit institution, completed construction (including built-in or attached facilities), in which the credit institution may be located;
• other property in non-monetary form, the list of which is established by the Bank of Russia.

The Law on Banks (Article 11), Instruction No. 109-I (Chapter 4) establish special requirements to non-monetary form of property.

Firstly, monetary value non-monetary property contributed as a contribution to the authorized capital of a credit organization upon its establishment is approved by the general meeting of founders.

Secondly, the amount of contributions in the form of non-monetary property to the authorized capital of a credit organization cannot exceed 20% of the authorized capital of the credit organization.

Thirdly, if non-monetary property is made as a contribution to the authorized capital of a credit organization, documents must be submitted confirming the right of its founders to contribute it to the authorized capital of the credit organization.

The founders of a credit organization must pay 100% of the declared authorized capital of the credit organization, specified in the charter of the credit organization, within one month from the date of receipt of notification of the state registration of the credit organization.

To confirm the actual payment of its authorized capital within a period not exceeding one month from the date of full payment, a credit organization submits the necessary documents to the territorial branch of the Bank of Russia at its location, including payment orders with a mark of execution, acts of acceptance and transfer of property of the founders , made as a contribution to the authorized capital of a credit organization, on the balance sheet of the credit organization.

Registration and licensing procedure- final stages of creating a credit organization. Let's start with the fact that for state registration of a credit organization created by establishment and obtaining a license to carry out banking operations, the founders send documents to the territorial office of the Bank of Russia at the intended location of the credit organization. In turn, the territorial branch of the Bank of Russia issues written confirmation to the founders of the credit organization that they have received documents submitted for state registration and obtaining a license to carry out banking operations.

Further, the period for consideration of documents by the territorial branch of the Bank of Russia at the intended location of the credit institution should not exceed three months from the date of submission of these documents. If there are comments on the submitted documents, the absence of a complete set of documents, or if state registration of the credit organization is refused, the territorial institution returns them to the founders with a written opinion.

The total period for making a decision on state registration or refusal should not exceed six months (Article 15 of the Banking Law). In this case, this period begins to run from the moment all necessary documents for state registration of a credit organization in a territorial branch of the Bank of Russia.

Refusal of state registration a credit institution and the issuance of a license to carry out banking operations is permitted only on the grounds provided for in Art. 16 of the Banking Law:

• inconsistency of candidates proposed for the positions of head of a credit institution, chief accountant and his deputies with the qualification requirements established by federal laws and regulations of the Bank of Russia adopted in accordance with them;
• unsatisfactory financial position of the founders of the credit organization or their failure to fulfill their obligations to federal budget, budgets of the subjects of the Federation and local budgets over the past three years;
• inconsistency of documents submitted to the Bank of Russia for state registration of a credit organization and obtaining a license to carry out banking operations with the requirements of federal laws and Bank of Russia regulations adopted in accordance with them;
• discrepancy between the business reputation of candidates for the positions of members of the board of directors (supervisory board) and the qualification requirements established by federal laws and regulations of the Bank of Russia adopted in accordance with them, and whether they have a criminal record for committing a crime in the economic sphere.

The decision to refuse state registration of a credit organization and to issue it a license to carry out banking operations is communicated to the founders of the credit organization in writing and must be motivated. Such a refusal, as well as the failure of the Bank of Russia to fixed time the corresponding decision can be appealed to the arbitration court (Article 16 of the Banking Law).

The decision on state registration of a credit organization is made by the Bank of Russia. Entering into a single State Register for legal entities, information on the creation, reorganization and liquidation of credit organizations, as well as other information provided for by federal laws, is carried out by the authorized registration body on the basis of a decision of the Bank of Russia on the relevant state registration. The interaction of the Bank of Russia with the authorized registration body on issues of state registration of credit organizations is carried out in the manner agreed upon by the Bank of Russia with the authorized registration body.

In order to carry out control and supervisory functions, the Bank of Russia maintains the Book of State Registration of Credit Institutions in the manner established by federal laws and Bank of Russia regulations adopted in accordance with them.

Thus, a credit organization acquires the status of a legal entity from the date of making the corresponding entry in the Book of State Registration of Credit Organizations (Article 51 of the Civil Code)1. However, a credit institution has the right to carry out banking operations only from the moment it receives a license issued by the Bank of Russia.

License- this is a special permission to carry out certain types of banking operations. It is issued by the Bank of Russia and is recorded in the register of issued licenses for banking operations (Article 13 of the Banking Law). The register of licenses issued to credit institutions is subject to publication by the Bank of Russia in the Bulletin of the Bank of Russia at least once a year.

To obtain a license, the following conditions must be met: a) it is issued after state registration of a credit organization; b) confirmation of timely and lawful payment of 100% of the authorized capital of the credit organization (as well as registration of a report on the results of the first issue of shares of the credit organization in the form of a joint-stock company). Such confirmation is issued in the form of a conclusion from a territorial institution of the Bank of Russia.

After which the Bank of Russia, within three days, makes a decision on issuing a general (banking) license and sends one copy of this license to the credit institution and the territorial office of the Bank of Russia.

Types of banking licenses. Taking into account the subject composition of licenses, they can be divided into two groups: licenses for carrying out banking operations by credit banking organizations (banks) and licenses issued to non-bank credit organizations.

Depending on the content, there are: a general (banking) license, i.e. a license to carry out banking operations; license to carry out currency transactions; hosting license precious metals. Within the framework of this classification, it is necessary to distinguish licenses for carrying out banking operations with funds in rubles and foreign currency without the right to attract funds from individuals to deposits, and licenses to attract funds from individuals to deposits in rubles and foreign currency.

A credit banking organization that has a license to carry out all banking operations with funds in rubles and foreign currency and fulfills the requirements for the amount of its own funds (capital) established by regulations of the Bank of Russia, has the right to obtain a general license. However, having a license to carry out banking operations with precious metals is not a prerequisite for obtaining a general license.

In addition, a credit organization that has a general license and own funds (capital) in an amount not less than the ruble equivalent of 5 million euros may, with the permission of the Bank of Russia, create branches in the territory of a foreign state and, after notifying the Bank of Russia, representative offices. Such a credit organization has the right, with permission and in accordance with the requirements of the Bank of Russia, to have subsidiaries on the territory of a foreign state (Article 105 of the Civil Code).

All licenses are divided into licenses with and without a validity period. A license to carry out banking operations is issued without limiting the duration of its validity (perpetual license).

The Law on Banks (Article 20) establishes an exhaustive list of grounds for revoking a credit organization’s license to carry out banking operations. For example, the Bank of Russia may revoke a license to carry out banking operations in the following cases: it is established that the information on the basis of which the said license was issued is unreliable; delays in the commencement of banking operations provided for by this license for more than one year from the date of its issue, etc.

At the same time, the Law on Banks names cases when the Bank of Russia is obliged to revoke a banking license, in particular: if the capital adequacy of a credit institution falls below 2%; if the amount of own funds (capital) of the credit institution is lower minimum value authorized capital established on the date of state registration of the credit organization. The specified grounds for revocation of a license to carry out banking operations do not apply to credit organizations during the first two years from the date of issue of the license to carry out banking operations.

The decision of the Bank of Russia to revoke a credit organization’s license to carry out banking operations comes into force from the date of adoption of the corresponding act of the Bank of Russia and can be appealed within 30 days from the date of publication of the message about the revocation of the banking license in the Vestnik of the Bank of Russia. Appealing a decision of the Bank of Russia, as well as taking measures to secure claims against a credit institution, do not suspend the validity of this decision.

Legal consequences of revocation of a banking license. The Law on Banks (Article 20) formulates the main consequence: after the revocation of a credit institution’s license to carry out banking operations, it (the credit institution) must be liquidated in accordance with the requirements of Art. 23.1 of this Law, and if it is declared bankrupt - in accordance with the requirements of the Law “On the Insolvency (Bankruptcy) of Credit Institutions”.

In our opinion, the revocation of the license to conduct banking operations by the Bank of Russia is not grounds for liquidating a credit institution. After revoking the license of a credit organization, the Bank of Russia has the right to apply to the arbitration court with a claim for its liquidation (Article 20 of the Law on Banks). In this case, the court is not connected with the fact of revocation of the license, but takes into account the circumstances that served as the basis for such revocation. In practice, a rather paradoxical situation may arise: the court rejects the Bank of Russia's claim for liquidation due to the revocation of its license, and a bank that has been deprived of its license has no right to engage in banking activities.

The Banking Law provides for a number of additional consequences of revocation of a banking license. In particular, from the moment of revocation of a credit institution’s license to carry out banking operations:

1. the deadline for fulfilling the obligations of the credit institution that arose before the day of revocation of the license to carry out banking operations is considered to have arrived;
2. the accrual of interest and financial sanctions provided for by federal law or agreement on all types of debt of a credit organization is terminated, with the exception of financial sanctions for non-fulfillment or improper fulfillment by a credit organization of its current obligations;
3. execution of enforcement documents on property penalties is suspended, it is not allowed enforcement other documents, the collection of which is carried out in an indisputable manner, with the exception of the execution of executive documents on the collection of debt under the current obligations of the credit institution, etc.

As you can see, these legal consequences when revoking a license to carry out banking operations are similar to the consequences that occur to a debtor when he is declared insolvent (bankrupt).

And Institute of Business, Law and Information Technologies

Test

Discipline: Business Law

On the topic: “The concept, types and legal status of commercial banks”

Scientific adviser:____________________________

1st year student

Faculty of Law

Correspondence department

Gomenyuk V.V.

Record code:_________________

Grade________________________

Signature of the scientific supervisor_____

2002

Plan

introduction

legal status of banks

conclusion

Introduction

The law provides for the creation of two types of credit organizations: banks and non-bank credit organizations.

Bank – This is a credit institution. Which has the exclusive right to carry out in aggregate the following banking operations:

attracting funds from individuals and legal entities into deposits;

placement of these funds on your own behalf and at your own expense on the terms of repayment, payment, urgency;

Credit organizations are one of the elements of the banking system of the Russian Federation, which also includes the Bank of Russia, representative offices and branches of foreign banks.

Being one of the types of entrepreneurial activity, banking activity is a system of constantly ongoing transactions and operations aimed at making a profit. The list of banking operations and transactions that credit institutions have the right to carry out is determined by Art. 5 Law:

Attracting funds from individuals and legal entities into deposits

Placement of these funds on your own behalf and at your own expense

opening and maintaining bank accounts for individuals and legal entities.

Carrying out calculations

Collection

Purchase and sale of currency in cash and non-cash

Issuance of bank guarantees.

Thus, the legislation provides for special economic competence for credit institutions.

State registration and maintenance of the State Registration Book of credit organizations, licensing of banking activities is carried out by the Bank of Russia in the manner established by the Law and other acts.

The law defines measures of control and supervision over the activities of credit institutions carried out by the Bank of Russia, as well as means of ensuring the stability of the banking system, protecting the rights and interests of depositors and creditors of credit institutions. So, in order to ensure financial reliability a credit institution is obliged to create reserves (funds), comply with mandatory standards, deposit required reserves with the Bank of Russia, and organize internal control. The activities of a credit institution are subject to an annual audit.

Chapter 1 Legal status of banks

Banks are a kind of organization. The legal status of banks is determined by two laws:

As subjects of business law, banks are characterized by complex and multifaceted competence. During the first in-depth study of the status of banks, it is necessary to understand many acts that characterize their multifaceted competence.

Banks are institutions operating in the field of finance, that is, their activities take place in the field of money circulation. The subject of their shares are cash, securities, precious metals, that is, everything that performs the function of payment, circulation and credit in monetary (equivalent to remunerative) form.

The question of whether a bank is an enterprise and whether the law “On Enterprises and Entrepreneurial Activities” can be extended to it is controversial. If we assume that this is not possible, then it is necessary in the law “On Banks and Banking Activities” to consider and resolve those issues that this act does not regulate at all, or refers to the legislation of the Russian Federation (for example, issues of terminating banks of their organizational and legal forms, labor relations, social activities and others).

It would be more correct to consider a bank as an enterprise operating in the field of finance and to apply to it the general provisions of the law on enterprises, unless the legislation on banks provides for other, special decisions. This formulation of the question is legitimate, especially if we consider that by Decree of the President of the Russian Federation of December 22, 1993 No. 2270 “On some changes in taxation and in the relationships between budgets of various levels,” taxation of banks is now carried out on the basis of the law “On the income tax of enterprises and organizations.” .

All banks collectively represent a system outside of which their activities are impossible. In this system, the leading role belongs to the Bank of Russia. It defines the fundamentals of banking activities, which cannot be implemented outside the system, without being subject to uniform rules for conducting operations without relying on the center with its functions that unite the activities of the system.

The center of the system, the Bank of Russia, performs unique functions that are unusual for any other organization. Only the Bank of Russia carries out the production and issue of banknotes in accordance with the decisions of the highest representative body of the Russian Federation. Only he owns the functions of the backup system. Only he manages all banks, starting from registration of charters, issuing licenses for banking operations and ending with supervisory and regulatory functions.

The Central Bank (Bank of Russia) is the main bank of the Russian Federation and is owned by it. It was created in accordance with the law of December 2, 1990 “On the Central Bank of the RSFSR” and was accountable to the Supreme Council of the Russian Federation.

The bank's charter was approved by the Presidium of the Supreme Council of the Russian Federation. The Bank of Russia is a legal entity. He is economically independent and makes expenses from his own income. The Bank of Russia receives these incomes by providing loans to banks, conducting settlement and cash services for banks with the collection of commission fees, through operations in relation to government securities, checks, bills, precious metals, and through other operations that comply with its charter.

The basis of the property base of the Bank of Russia is its authorized capital, that is, the funds with which it was endowed by the Supreme Council of the Russian Federation when it was created. In the course of its activities, the property base of the Bank of Russia is replenished from the income received. It can create funds for various purposes (wage fund, production and social development fund, and others, in accordance with the charter of the Bank of Russia). The property belongs to the Bank of Russia with the right of full economic management.

Economic competence is distributed in several areas. In the field of organizing money circulation, the Bank of Russia issues money, organizes the circulation of banknotes, and carries out regulation money supply in circulation. In the field of monetary regulation, the Bank of Russia determines the norms of required reserves of commercial banks deposited with the Bank of Russia. Discount rates on loans, economic standards for banks refinances banks by providing them with term loans at the interest (discount) rate of the Bank of Russia, determines the conditions for providing loans secured by various assets, lends to banks and other lending institutions as a lender of last resort.

The Bank of Russia is the legal agent of the state for the implementation of its finances. The Bank of Russia accepts government loan bonds of the Russian Federation on its balance sheet.

As the center of the banking system, the Bank of Russia supervises and regulates the activities of banks. The Bank of Russia establishes uniform accounting rules, statistical reporting and performing banking transactions in banks.

The Bank of Russia has the right to give other banks mandatory instructions to eliminate violations of banking laws and apply appropriate sanctions to them, on the basis of the law.

In order to regulate the activities of banks, the Bank of Russia establishes, issues economic standards for banks, and revokes licenses to carry out banking operations, registers the charters of banks and maintains a bank registration book, determines the procedure for the formation of mandatory insurance funds to compensate for losses of clients.

The Bank of Russia implements non-economic functions. He can carry out any currency transactions, both on the territory of the Russian Federation and abroad. Representing the interests of the Russian Federation. The Bank of Russia also regulates the exchange rate of the ruble in relation to foreign currency and manages gold - foreign exchange reserves.

Management of the Bank of Russia is carried out by the Board of Directors of the Bank and the Chairman of the Bank of Russia. It is approved by the Government of the Russian Federation on the proposal of the Chairman of the Bank.

His powers include:

development of directions of monetary policy of the Russian Federation

determination of the volumes and types of operations of the Bank of Russia with banks and budgets, as well as in the securities market, in the foreign exchange market

determining the size of Bank of Russia loans provided by another bank and interest rates on these loans.

Creation and modification of funds formed in accordance with the Charter of the Bank of Russia.

Establishment of economic standards for banks.

Review of the work report, balance sheet, profit and loss account of the Bank of Russia.

Other issues provided for by the charter of the Bank of Russia and the regulations of the Board of Directors.

The structure of the Bank of Russia system consists of main departments acting on behalf of the Bank of Russia within the powers granted to them. As part of these main departments, settlement and cash centers operate as structural divisions.

The Bank of Russia and its territorial Main Directorates are playing off a single centralized system. The Bank of Russia, as legal entities or structural divisions, creates a Russian association for the collection of monetary proceeds, computer centers, a training center, as well as other institutions, enterprises and organizations to perform the tasks and functions of the Bank of Russia.

The legal status of commercial banks, in addition to what is said about them in connection with the characteristics of the banking system and the Bank of Russia, is determined mainly by the Law “On Banks and Banking Activities”.

A bank is a commercial institution that, on the basis of a license issued by the Central Bank (Bank of Russia), has the right to attract funds from legal entities and individuals and place them on its own behalf on the terms of repayment, payment and urgency, as well as carry out other banking operations. A bank is always a legal entity.

Certain banking operations may be performed by institutions that are not banks. Such credit institutions are subject to the law “On Banks and Banking Activities”, unless otherwise provided by this law.

The creation and termination of banks is in general terms the general rule for the creation of enterprises. The Bank of Russia arises in a constituent-administrative manner, other banks in a constituent and contractual-constituent manner. For all banks (except for the Bank of Russia), it is also necessary to obtain a license; it provides a list of operations that banks have the right to perform. The law provides for a certain list of documents for obtaining a license, including special documents for licensing the activities of joint banks, foreign banks and branches, non-resident banks (that is, created and located outside of Russia). In relation to the latter, the Bank of Russia also has the right to present additional requirements regarding the minimum and maximum size their authorized capital. Registration of bank charters is carried out by the Bank of Russia. Banks registered by him have the right to open branches and representative offices in Russia and abroad.

The bank's property base consists of: authorized capital, that is, funds of legal entities and individuals formed by the founders of the bank), authorized capital is formed from the funds of at least three participants of the bank), which serves as security for the bank's obligations; raised funds from legal entities on the above conditions; property and funds received in the form of income from banking activities: including those sent to reserve, insurance and other funds formed by the bank.

What legal title underlies the bank’s right to the authorized capital formed by the founders, to the income received and the property acquired with these incomes? It must be assumed that the bank here has the right to manage the property. Possession, use and disposal of it under this title is carried out to the extent determined by the constituent documents.

The economic competence of a bank is determined by the range of banking operations and transactions that it has the right to carry out in accordance with the law and the license issued to the bank. Typical banking operations include:

attracting deposits and providing loans;

carrying out settlements on behalf of clients and correspondent banks (that is, banks interacting to ensure settlements for clients who have accounts in the relevant banks), their cash services;

opening and maintaining accounts of clients and correspondent banks, including foreign ones, including financing accounts as investments;

issuance of guarantees and guarantees. As well as other obligations for third parties, providing for the fulfillment of cash.

This activity occupies the largest share of the bank and is the most common in the work of any banks.

In addition, banks carry out other operations and transactions:

issue, buy, sell and store payment documents and securities (checks, letters of credit, bills, shares, bonds and other documents), and carry out other transactions with them;

acquire rights of claim for the supply of goods and provision of services, assume the risks of fulfilling such claims, collect such claims (forfeiting), and also carry out these operations with additional control over the movement of goods (factoring);

buy and sell currency in cash and in accounts and deposits with Soviet and foreign legal entities and individuals;

buy and sell precious metals, stones, as well as products made from them in the Russian Federation and abroad;

attract and place precious metals on deposit, carry out other transactions with these values ​​in accordance with international banking practice;

attract, place funds and manage securities on behalf of clients – trust operations;

provide brokerage and consulting services, carry out leasing operations;

carry out other operations and transactions for the placement of the Bank of Russia issued within its competence.

The competence of banks, as we see, is realized exclusively in the monetary and financial sphere. Banks are prohibited from carrying out operations for the production and trade of material assets, as well as insurance of all types, with the exception of insurance of currency and credit risks.

To ensure the financial stability of banks, all banks in the Russian Federation deposit banks' required reserves with the Bank of Russia, based on the required reserve standards established by it. As already mentioned, banks are obliged to comply with the mandatory economic standards established by the Bank of Russia:

the minimum amount of the bank's authorized capital;

the maximum ratio between the size of the authorized capital and the amount of its assets and taking into account risk assessment;

indicators of balance sheet liquidity (that is, the ability to repay all of its obligations in the event of liquidation of the bank);

the minimum amount of required reserves placed with the Bank of Russia;

maximum risk per borrower;

limiting the size of currency and exchange rate risks;

limitation and use of attracted deposits for the acquisition of shares of legal entities.

Banks have the right to bank secrecy, that is, to maintain secrecy regarding the transactions of their clients. Certificates in this regard can be issued only in cases provided for by law.

In order to protect the rights of depositors, the law establishes rules on the possibility of foreclosure on deposits only in cases provided for by law (by decisions of courts and decisions of investigative bodies in criminal cases pending in their proceedings; by a satisfied claim arising from a criminal case; by decision on alimony and in others , cases provided for by law - Article 26 of the Law “On Banks and Banking Activities”).

In relations with clients, the contract is currently the only determining factor. Clients independently choose banks for credit and settlement services. Only the bank and its branch according to the registration of the enterprise are obliged to open a current account at the request of the enterprise. Interest rates and the amount of commission fees for bank operations are established by agreement of the parties, taking into account their competence of the Bank of Russia to regulate the level of bank interest rates.

Special competence is provided for the bank in cases of insolvency of clients. In such cases they have the right to implement the measures provided for in Art. 34 of the Law “On Banks and Banking Activities”.

Banks are required to publish annual balance sheets in the form and within the time limits established by the Bank of Russia. Their activities are subject to annual audits.

Banks operate in any organizational and legal form they choose (private enterprise, JSC, AOZT, partnerships, joint banks with the participation of Russian and foreign capital, etc.). Depending on this, they exercise their competence in the form established by law through their statutory bodies. Employees of government and management bodies are prohibited from participating (combining positions in bank management bodies).

Conclusion

Banks are credit, financial institutions that are guided in their activities by legal regulations. The legal status of Russian banks is established by law, the structure and system of subordination of banks is also described in the law, everything is clear and definite. Violations of one of the accepted rules entail the imposition of sanctions and liability on the heads of these institutions.

This paper briefly describes the legal status of the Bank of Russia, Russian banks and commercial banks. From this description, we can conclude that in the legal status of the listed banks there are many similarities, but the order of subordination and activities of these banks has a number of differences, which allows the law to approach the problem of punishment, encouragement and maintenance of these banks to bring greater clarity to the relationship with citizens (individuals).

List of used literature

Constitution of the Russian Federation

Civil Code of the Russian Federation

Civil Code of the Russian Federation (commented)

Martemyanov E.S. “economic law” vol. 1 and vol. 2: -1994,

Ershov I.V., Ivanova T.M. business law tutorial m.: 2000.

I.V. Doynikov Entrepreneurial (economic) law textbook M.: - 1997.

Business law edited by N. M. Korshunov, N. D. Eriashvili M.: -2001.

Plan…………………………………………………………..…..……...2

Introduction……………………………………………………3

Chapter 1 legal status of banks………………..………5

conclusion………………………………………….………10

list of used literature………………………11

Competition, auction, ... legislation or charter ( position) about local self-government. ...

Financial assessment provisions commercial jar and its ways are improved

Thesis >> Banking

... "Assessment of financial provisions commercial jar and his ways... the following definition concepts reliability jar: Reliability commercial jar– this is... normative legal acts of the National jar Ukraine and... jar. Main species department expenses jar ...

Commercial banks improving the quality of customer interaction

Abstract >> Banking

... jar with the population; – formulate provisions, defining credit policy commercial jar both strategy and tactics jar ... concepts: “deposit” and “contribution”, as well as their species. ... information, consulting, reference, legal and other banking...

Commercial banks as a link in the state banking system

Coursework >> Banking

... "health" of the country, international position state, welfare of citizens. 1. Concept and evolution commercial banks in Russia and foreign countries...

The first and main link in the Russian banking system is the Bank of Russia, which operates in accordance with the Constitution of the Russian Federation, Federal Law dated July 10, 2002 N 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)” Federal Law dated July 10, 2002 No. 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)” (with amendments and additions) // SZ RF dated July 15, 2002 No. 28. Art. 2790. and other legislative acts.

According to the Law on the Bank of Russia, it has a complex legal nature activities.

The inconsistency of the Law on the Bank of Russia of 2002 in the absence of a charter makes it difficult to characterize the organizational and legal position of the main bank of the country, which does not allow determining the legal status of the property of the Bank of Russia. The situation is aggravated by the fact that in Russian legislation there is no concept of “legal entities of public law”Credit organizations in Russia: legal aspect (ed. E.A. Pavlodsky). - Wolters Kluwer, 2006, p. 83..

In foreign legislation, public legal entities are those created on the basis of an act of public authority and possessing authority. Government bodies such as ministries and departments are usually created in the form of state institutions.

According to different opinions on the status of the Bank of Russia, reflected in the legal literature, in its organizational and legal form it is:

• a) government agency;
• b) unitary enterprise;
• c) a government corporation.

The law contains provisions that equally provide grounds to accept and refute each of these opinions. The Bank of Russia, as some authors note, is government agency, since authoritative management powers are inherent only in government bodies, which are currently institutions.

Indeed, ministries and departments, as a rule, are given the status of state institutions. But the presence of managerial functions does not determine the organizational and legal status of a legal entity. One of the fundamental features of an institution is its mandatory financing by the owner (clause 2 of article 48 of the Civil Code of the Russian Federation).

According to Art. 2 of the Law on the Bank of Russia, the owner of the property of the Bank of Russia is the Russian Federation. However, the owner does not finance the Bank of Russia, which is not budgetary organization and carries out its expenses at its own expense. At the same time, the state is not responsible for the obligations of the Bank of Russia, and the Bank of Russia is not responsible for the obligations of the state, unless otherwise established by federal laws. The listed circumstances exclude the possibility of classifying the Bank of Russia as a state institution. Golubev S.A. Legal status of the Bank of Russia // Legal work in a credit organization. 2005. No. 3. P. 25..

However, there is no reason to believe that the Law provides for the Bank of Russia an organizational and legal form inherent in state unitary enterprises. A number of points speak in favor of this point of view.

The property of the State Bank of the USSR was transferred to the Bank of Russia. The owner of this property is the Russian Federation. The commercial activities of the Bank of Russia correspond to the characteristics of a unitary enterprise. This organizational and legal form meets the specified norms of the Law. The Bank of Russia carries out expenses from income received from banking activities.

The Bank of Russia does not have a charter, it does not have the right to carry out transactions with real estate (clause 3 of Article 49 of the Law on the Bank of Russia), while the Civil Code of the Russian Federation (clause 2 of Article 295) allows unitary enterprises to carry out transactions with real estate with the consent of the owner. In some cases (for own needs) The Bank of Russia can dispose of its real estate without obtaining the consent of the owner. The Bank of Russia only has the right to participate in the capital of other credit organizations in the cases specified in Art. 8 of the Law on the Bank of Russia.

It should be noted that it is difficult to combine the real - and very tangible - commercial activities of the Bank of Russia with the fact that making a profit is not the purpose of the Bank's activities (Article 3 of the Law).

As you can see, the conclusion that the Bank of Russia is a unitary enterprise is not controversial.

Recently, in connection with amendments to the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations” Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations” // SZ RF of January 15, 1996 No. 3. art. 145. In the literature, an opinion has been expressed that the Bank of Russia is classified as state corporations. A number of provisions of the Law on the Bank of Russia correspond with the provisions of the Law “On Non-Commercial Organizations”. Thus, the Bank of Russia was established by the Russian Federation on the basis of a property contribution (the property of the State Bank of the USSR was transferred to the Bank of Russia); The Bank of Russia was created on the basis of the Law on the Bank of Russia; The Bank of Russia does not have membership; The bank currently does not have statutory documents - all this complies with the requirements of Art. 7.1 of the Law “On Non-Profit Organizations”.

A number of legal regulations exclude the possibility of classifying the Bank of Russia as a non-profit organization: it has an authorized capital, and the property of the Bank of Russia is not its property.

At the same time, it should be taken into account that clause 2 of Art. 50 of the Civil Code of the Russian Federation provides for a closed list of organizational and legal forms only for commercial organizations. The Bank of Russia, as noted, primarily decides a number of economic financial issues, but his commercial activities are of an auxiliary nature. Therefore, in accordance with paragraph 3 of Art. 50 of the Civil Code of the Russian Federation, the Bank of Russia has the right to have any organizational and legal form. It is only necessary that the powers of the Bank of Russia to own, use and dispose of its property comply with the provisions of the Civil Code of the Russian FederationCivil Code of the Russian Federation of November 30, 1994 N 51-FZ (Part 1) // SZ RF of December 5, 1994 No. 32. Art. . 3301..

It seems that the organizational and legal form of the Bank of Russia should take into account the presence on its balance sheet of both property transferred to the Bank as a legal entity (for example, the authorized capital), and property of the Russian Federation, which should be on a separate balance sheet and which the Bank of Russia manages in the interests of states on behalf of the Russian Federation, for example, the country's gold and foreign exchange reserves.

The possibility of creating two legal regimes of property does not depend on the organizational and legal form of the legal entity. However, the presence of property of the Russian Federation on a separate balance sheet is closer to state institutions.

Thus, the organizational and legal form of the Bank of Russia is dictated by the presence of assigned functions and the degree of its independence.

The example of the Bank of Russia clearly shows the need to regulate the creation and functioning of public legal entities, as is the case in many foreign countries.

Thus, the Bank of Russia is a government body with its own special competence and complex nature of interaction with the Federal Assembly, the President of the Russian Federation and the Government of the Russian Federation. The place of the Bank of Russia in the system of government bodies should be more clearly reflected in the Constitution of the Russian Federation in accordance with its main function, aimed at carrying out credit and settlement policy, and the Law on the Bank of Russia should specify the ways and forms of interaction of the Bank of Russia with the Government of the Russian Federation, the Ministry economic development and trade, other ministries and departments.

One of the most important principles of action of the Government of the Russian Federation is the implementation of a balanced monetary policy, ensuring the transition to full convertibility of the ruble without its excessive strengthening.

The implementation of measures to regulate issues in the financial sector requires coordinated actions of the Government of the Russian Federation, its federal ministries (primarily the Ministry of Finance of the Russian Federation) with the main bank of the country. The consistency of measures in solving certain problems arising in this important area determines the effectiveness of the state's management of market processes.

The peculiarity of the relationship between the Government of the Russian Federation and the Bank of Russia is based on the fact that the Bank of Russia is not subordinate to the Government of the Russian Federation. This provision is confirmed by the new Law on the Bank of Russia. However, its main function of regulation monetary system he cannot carry out the country in isolation from the policies of the Government of the Russian Federation.

The Chairman of the Bank of Russia is appointed and dismissed by the State Duma of the Federal Assembly of the Russian Federation (clause “c” of Article 103 of the Constitution of the Russian Federation). The candidacy of the Chairman of the Bank of Russia in accordance with Art. 83 of the Constitution of the Russian Federation is presented to the State Duma by the President of the Russian Federation. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta dated December 25, 1993..

Issues of improving the banking system, banking regulation and supervision, the main directions of the unified state monetary policy, the implementation of the policy of foreign exchange regulation and foreign exchange control and many others are within the competence of the National Banking Council (clauses 4, 5, etc., Article 13 of the Law on the Bank Russia). The National Banking Council is a collegial body, to which are sent: two people by the Federation Council of the Federal Assembly of the Russian Federation; three - by the State Duma; three - by the President of the Russian Federation and three - by the Government of the Russian Federation. The Bank of Russia is represented in the National Banking Council by its chairman.

At the same time, in accordance with the provisions of the Law on the Bank of Russia, within the limits of its competence, the Bank of Russia exercises its functions and powers independently of others federal bodies state authorities, state authorities of the constituent entities of the Russian Federation and local governments (part 2 of article 1). Within the limits of its competence, the Bank of Russia is independent in its activities, and government bodies do not have the right to interfere in its activities. Golubev S.A. Legal status of the Bank of Russia // Legal work in a credit organization. 2005. No. 3. P. 25..

The Law on the Bank of Russia provides that the Bank of Russia develops and implements a unified state monetary policy in cooperation with the Government of the Russian Federation (clause 1, article 4).

It should be noted that in other economically developed countries, in which central banks act as conductors of official monetary policy, they (central banks) are characterized by high level independence from others government agencies. For example, according to the Bank of Japan Law, it is not a government agency. This is necessary to limit the government's ability to use Bank of Japan funds. However, the degree of independence of central banks varies. For example, the governor and his two deputies of the Bank of France are appointed by decree of the Council of Ministers. The Governor submits a report on the operations of the Bank of France to the President of the Republic.

German federal bank nor is he obliged to follow the instructions of his government.

Current Russian legislation prohibits state intervention in the activities of legal entities, regardless of their organizational and legal form. Entity rights may be limited only in cases and in the manner prescribed by law (clause 2 of article 49 of the Civil Code of the Russian Federation). Restrictions on the activities of the Bank of Russia arise from its legal capacity, which is determined by law. The Bank of Russia, as an entity of public law, is endowed with special rather than general legal capacity.

The nature of the relationship between the Government of the Russian Federation and the Bank of Russia is largely determined by the legal status of the latter. The main functions of the Bank of Russia include: issuing banknotes; provision of various types of services for banks and non-bank credit institutions; performing the functions of a financial agent of the Government of the Russian Federation; storage of gold and foreign exchange reserves; carrying out monetary policy activities Bratko A.G. Bank of Russia: legal status and competence. - System GARANT, 2006.

Along with regulatory powers monetary system Russia, managing banks and other credit institutions, performing other functions of special competence, the Bank of Russia directly carries out banking activities on a commercial basis. It seems that commercial activity is not inherent in government agencies. In the future, in accordance with the objectives of this work, the activities of the Bank of Russia will be studied as a government body, which is part of the executive power system with its own special competence and established legal nature of relations with the President of the Russian Federation, the Federal Assembly and the Government of the Russian Federation.

Among the functions of the Bank of Russia, two groups can be distinguished: those that the Bank of Russia carries out in cooperation with the Government of the Russian Federation, and the functions that it performs monopolistically in accordance with Art. 4 of the Law on the Bank of Russia.

The interaction of the Bank of Russia with the Government of the Russian Federation is clearly visible in the example of the implementation of monetary policy by the Bank of Russia. The Law on the Bank of Russia provides that the Bank of Russia, in cooperation with the Government of the Russian Federation, develops and implements a unified state monetary policy aimed at protecting and ensuring the stability of the ruble. In this direction, the main task is to maintain stability purchasing power monetary unit ruble and providing a flexible system of cash payments. The Bank of Russia does not regulate the scale of credit operations. It only affects the amount of reserves that banks are required to keep in mandatory reserve accounts opened with the Bank of Russia. According to the Law on the Bank of Russia (Article 21), in order to implement the assigned functions, the Bank of Russia participates in the development economic policy Government of the Russian FederationBratko A.G. Bank of Russia: legal status and competence. - System GARANT, 2006.

Three main instruments of monetary policy should be indicated: changes in the discount rate; changes in bank reserve requirements, open market operations (purchase and sale of government obligations), changes in discount rates. To implement interaction between the Bank of Russia and the Government of the Russian Federation in the development of these and other financial and economic issues, the Chairman of the Bank of Russia (or his deputy) participates in meetings of the Government of the Russian Federation, at which he reports the point of view of the Bank of Russia on solving the problems under consideration related to the implementation of state monetary policy. politicians.

In turn, the work of the country’s main bank also cannot be carried out without direct contact with the relevant ministries and departments.

According to Art. 21 of the Law on the Bank of Russia, the Minister of Finance of the Russian Federation and the Minister of Economic Development and Trade (or their deputies) participate with an advisory vote in meetings of the Board of Directors, which is granted broad powers to develop the policy of the Bank of Russia.

The Board of Directors of the Bank of Russia, in particular, is entrusted with the task, in cooperation with the Government of the Russian Federation, to develop and ensure the implementation of the main directions of the unified state monetary policy.

The interaction of the Government of the Russian Federation, the Federal Assembly, government bodies with the Bank of Russia is ensured, as indicated, also by the National Banking Council, whose task is to consider the main directions of the unified state credit policy, etc. (Article 13 of the Law on the Bank of Russia).

In order to carry out joint activities with the Bank of Russia, the Government of the Russian Federation also adopts resolutions on the implementation of agreed measures in the field of monetary policy.

In separate resolutions of the Government of the Russian Federation on economic issues contains instructions to the Bank of Russia regarding the implementation of activities within the scope of its activities. Golubev S.A. Legal status of the Bank of Russia // Legal work in a credit organization. 2005. No. 3. P. 25. .

At the same time, based on the legal status of the Bank of Russia, we believe that in the decrees of the Government of the Russian Federation, the norms related to the activities of the Bank of Russia should be only advisory in nature.

In accordance with the new Law on the Bank of Russia, the competence of the Bank of Russia has been expanded, including on issues that it resolves exclusively, without coordination with the Government of the Russian Federation and other bodies government controlled. Thus, the Bank of Russia issues cash banknotes, organizes the circulation of money and its withdrawal from circulation, organizes and carries out currency regulation and exchange control, publishes regulations in the field of banking on issues within its competenceCredit organizations in Russia: legal aspect (editor-in-chief E.A. Pavlodsky). - Wolters Kluwer, 2006, p. 91..

The Bank of Russia issues permission for commercial banks and non-bank credit organizations to carry out banking operations, supervises the activities of credit organizations, and determines a number of mandatory economic standards for them.

It should be noted that in a number of European countries, control over the activities of banks is carried out by central banks together with other government bodies.

Activities of the Bank of Russia related to increasing the efficiency of regulatory influence on financial condition banks, is carried out in two directions: directly - through banking supervision, and indirectly - through measures of financial stabilization, macroeconomic regulation of the economy. Credit organizations in Russia: the legal aspect (ed. E.A. Pavlodsky). - Wolters Kluwer, 2006, p. 91..

It is of interest that, in pursuing its policy on issues within its competence, the Bank of Russia, as a rule, cooperates with the Ministry of Finance of Russia, the Federal tax service Russian Federation, other authorities.

The most important prerogative of the Bank of Russia is the right to request information from commercial banks about their activities. This information allows you to control the activities of credit institutions and their compliance with current legislation. However, the Bank of Russia does not have the right to interfere in the operational activities of credit institutions. The Bank of Russia has the right to request not any information, but in accordance with the list established by the Board of Directors of the Bank of Russia, which, as noted, includes representatives of the Ministry of Finance of Russia and the Ministry of Economic Development and Trade of the Russian Federation.

The interaction of the Bank of Russia with the Government of the Russian Federation in resolving financial issues does not infringe on its independence. Currently, the role of the Bank of Russia in regulating the country's monetary system has increased significantly.

The Bank of Russia performs an important function of influencing money market countries through the purchase and sale of securities. Article 39 of the Law on the Bank of Russia gives the Bank of Russia the right to buy and sell government securities (treasury bills, government bonds, etc.). At the same time, in accordance with the concept of development of the securities market in the Russian Federation, the Bank of Russia, together with the Government of the Russian Federation, is actively implementing the practice of promptly issuing short-term securities in order to regulate the liquidity of commercial banks.

However, the Law on the Bank of Russia provides for the prerogative of the Bank of Russia to establish rules for making payments in the Russian Federation.

In exercising its powers, the Bank of Russia interacts not only and not so much with the Government of the Russian Federation, but with ministries and departments. The cooperation of these bodies is based on the similarity of the tasks being solved.

If the tasks of the Bank of Russia are to develop and implement a unified state monetary policy (Article 41 of the Law on Banks), then the Ministry of Finance of Russia ensures the implementation of a unified financial, budgetary, tax and currency policy.

The similarity of the goals of these departments leads to the fact that in a number of cases joint regulations are adopted.

The Ministry of Finance of Russia carries out a number of functions together with the Bank of Russia, namely, Credit organizations in Russia: legal aspect (ed. E.A. Pavlodsky). - Wolters Kluwer, 2006, p. 91:

• - carries out, with the participation of the Bank of Russia, state policy in the field of issue and placement of government securities;
• - carries out jointly with the Bank of Russia operations to service state internal and external debt of the Russian Federation in the manner established by federal laws, manages the state internal and external debt of the Russian Federation in the prescribed manner, carries out necessary measures to improve its structure and optimize the costs of its maintenance;
• - develops and approves the procedure for determining prices for precious metals and products made from them, purchased into the State Fund of Russia and sold from it; develops, with the participation of the Bank of Russia, the necessary measures to regulate the market of precious metals and precious stones in the Russian Federation.

The Bank of Russia and the Russian Ministry of Finance are cooperating in the production of bank notes and metal coins.

In some cases Team work Bank of Russia with the Ministry of Finance of Russia and tax authorities follows from the nature of the problems being solved.

Thus, the supervisory and regulatory functions of the Bank of Russia are expressed in the state registration of credit organizations and licensing of banking operations, in the establishment of mandatory economic standards for credit organizations, as well as rules for conducting banking operations, accounting rules, compilation of statistical reporting, and in presenting qualification requirements for managers executive bodies and the chief accountant of the credit organization. The Bank of Russia has the right to request and receive from credit institutions necessary information about their activities, demand clarification on the information received. If a credit organization violates laws and other regulations, fails to provide or provides incomplete or distorted information, it has the right to demand that the credit organization eliminate the identified violations.