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Plan:
Introduction……………………………………………………………………p.
1. Non-cash payments as one of the main transactions carried out on a bank account……………………………………………………….. p.
2. The concept and essence of the bank account agreement…………………..p.
2.1. The concept, form and condition of the bank account agreement……… pp.
2.2. Basic legal relationship between the bank and the client……………………p.
2.3. Closing and reissuing accounts……………………………..p.
3. The procedure for opening and maintaining bank accounts of individuals ... p.
3.1. Types of bank accounts of individuals………………………..p.
3.2. The procedure for checking documents for opening an account for an individual ..p.
4. Tax offense and its composition……………..……………p.
5. Credit organizations (banks) as participants in tax legal relations…………………………………….……………..……p.
Page
Conclusion……………………………………………………………….p.
References……………………………………………………… p.
Applications.
Introduction.
Opening and maintaining bank accounts is one of the most traditional banking operations and perhaps the most common banking service. A bank account is where the functioning of the country's banking system begins. In modern reality, bank accounts have become not only an integral part of the economic activities of individual entrepreneurs and legal entities, but also a part of the daily life of individuals.
Legal entities and individual entrepreneurs, as well as individuals who do not have such a status, open current accounts in banks in order to credit funds, store them, and carry out transactions with funds. Legal entities open accounts already due to the fact that, according to general rule, they must make payments in a non-cash manner.
The economic relations that are being formed in the Russian Federation create all the prerequisites for the search for more civilized forms of settlement between business entities and citizens. A special place in these calculations is given to banks and other credit organizations. But in order to interest potential customers to use the services of banks and make payments using bank accounts, it is necessary to form an appropriate legal framework in our country. All this determines the relevance of my term paper. It is a bank account that allows you to make non-cash payments and keep money in the bank. These legal relations in Russian civil law have a special place.
The purpose of the course work is to reveal the essence and content of legal relations arising from transactions with bank accounts. To achieve this goal, it is necessary to solve the following tasks:
1) Describe the non-cash payment as one of the main transactions carried out on a bank account.
2) Expand the concept of a bank account agreement, determine its subject, form and content;
3) Consider the procedure for opening and maintaining a bank account.
4) Allocate responsibilities for the payment of taxes and fees.
The object of the course work is a bank account.
The subject of the study is the legal relations that arise in the course of the implementation of income and expenditure transactions on a bank account.
1. Essence and forms of non-cash payments.
The system for organizing cashless payments is not just a set of interrelated elements. The organization of this system is based on three components:
1) a set of principles for the organization of cashless payments, mandatory for all its subjects of economic relations;
2) a system of accounts that allows you to make payments and settlements
in non-cash form;
3) a system of payment forms, documents and workflow rules.
The settlement system - dynamic must meet the requirements of economic life. Non-cash payments should be carried out in such a way that payments are made as soon as possible, allowing to ensure the continuity and acceleration of the reproduction process, the circulation of capital and the turnover of funds. For normal functioning, the system of cashless payments should be based on general and binding principles and regulations. The procedure for conducting non-cash settlements should be uniform for all credit institutions and economic entities throughout the country and fit into international settlement relations.
When making non-cash settlements, settlements by payment orders, letters of credit, checks, settlements by collection, as well as settlements in other forms provided for by law, banking rules established in accordance with it and business practices applied in banking practice are allowed.
All non-cash payments are carried out on the basis of payment documents that were in circulation only in intra-bank circulation. The listed principles for organizing non-cash payments did not take into account the requirements of the solvency and creditworthiness of the buyer, the possibility of using other various and more flexible forms of payment and payment methods in practice, as well as the negative impact of violations of the calendar order of payments on the liquidity of the balance sheets of settlement participants.
Cashless payments by payment orders, by letter of credit, by checks, by collection are regulated by the Regulation of the Central Bank of the Russian Federation dated 03/10/2002 No. 2-P "On non-cash payments in the Russian Federation".
The debiting of funds from the account is carried out on the basis of settlement documents drawn up in accordance with the requirements of the Regulations of the Central Bank, within the funds available on the account, unless otherwise provided in agreements concluded between the Bank of Russia or credit institutions and their clients.
If the funds on the account are not enough to satisfy all the claims made against it, the funds are debited as they are received in the order established by law.
Calculations are carried out as follows:
- by a payment order, the bank undertakes, on behalf of the payer, at the expense of the funds in his account, to transfer a certain amount of money to the account of the person indicated by the payer in this or in another bank within the period prescribed by law or established in accordance with it, unless a shorter period is provided bank account agreement or is not determined by the customs of business turnover used in banking practice. Rules related to the transfer of funds through a bank by a person who does not have an account with this bank, unless otherwise provided by law, banking rules established in accordance with it, or does not follow from the essence of these relations. The procedure for making settlements by payment orders is regulated by the law, as well as the banking rules established in accordance with it and the customs of business turnover applied in banking practice.
- when settling under a letter of credit, the bank acting on behalf of the payer to open a letter of credit and in accordance with its instructions (issuing bank), undertakes to make payments to the recipient of funds or pay, accept or discount a bill of exchange or authorize another bank (executing bank) to make payments payee, or pay, accept or discount a bill of exchange. An issuing bank that makes payments to a recipient of funds, or pays, accepts, or discounts a bill of exchange, is subject to the rules of the nominated bank. In the case of opening a covered (deposited) letter of credit, the issuing bank, when opening it, is obliged to transfer the amount of the letter of credit (coverage) at the expense of the payer or the loan granted to him at the disposal of the executing bank for the entire period of validity of the obligation of the issuing bank. In the event of opening an uncovered (guaranteed) letter of credit, the executing bank is entitled to write off the entire amount of the letter of credit from the account of the issuing bank maintained by it. The procedure for making settlements under a letter of credit is regulated by law, as well as the banking rules established in accordance with it and the customs of business turnover used in banking practice.
- a letter of credit is recognized as revocable, which can be changed or canceled by the issuing bank without prior notice to the recipient of funds. The withdrawal of the letter of credit does not create any obligations of the issuing bank to the recipient of the funds. The executing bank is obliged to make a payment or other operations under a revocable letter of credit, if by the time they are made it has not received a notice of a change in the terms or cancellation of the letter of credit. A letter of credit is revocable, unless otherwise expressly stated in its text.
- A letter of credit is recognized as irrevocable if it cannot be canceled without the consent of the recipient of funds. At the request of the issuing bank, the executing bank participating in the letter of credit transaction may confirm an irrevocable letter of credit (confirmed letter of credit). Such confirmation means acceptance by the executing bank of an obligation, additional to the obligation of the issuing bank, to make payment in accordance with the terms of the letter of credit. An irrevocable letter of credit confirmed by the nominated bank cannot be changed or canceled without the consent of the nominated bank.
- in case of collection settlements, the bank (issuing bank) undertakes, on behalf of the client, to carry out actions at the expense of the client to receive payment and (or) acceptance of payment from the payer. The issuing bank that received the client's order is entitled to engage another bank (executing bank) for its execution. The procedure for making settlements on collection is regulated by the law, the banking rules established in accordance with it and the customs of business turnover applied in banking practice. In case of non-execution or improper execution of the client's order, the issuing bank shall be liable to him on the grounds and in the amount established by law. If non-execution or improper execution of the client's order occurred due to violation of the rules for settlement transactions by the executing bank, liability to the client may be assigned to this bank.
A check is a security containing an unconditional order of the drawer of the check to the bank to pay the amount indicated in it to the holder of the check. Only a bank where the drawer has funds that he has the right to dispose of by issuing checks can be indicated as a payer on a check. It is not allowed to withdraw a check before the expiration of the term for presenting it. The issuance of a check does not extinguish the monetary obligation for which it was issued. The procedure and conditions for the use of checks in the payment turnover are regulated by law, and in the part not regulated by it, by other laws and banking rules established in accordance with them.
Banks carry out operations on accounts on the basis of settlement documents.
A settlement document is a paper-based document or, in established cases, an electronic payment document:
- order of the payer (client or bank) to write off funds from his account and transfer them to the account of the recipient of funds;
- an order from the recipient of funds (collector) to write off funds from the payer's account and transfer them to the account indicated by the recipient of funds (collector).
Settlement documents on paper are drawn up on the forms of documents included in All-Russian classifier management documentation 1 .
Settlement documents must contain the following details (taking into account the peculiarities of the forms and procedure for making cashless payments):
1) the name of the settlement document and the code of the form according to OKUD OK 011-93;
2) number of the settlement document, date, month and year of its issue;
3) type of payment;
4) the name of the payer, his account number, taxpayer identification number (TIN);
5) the name and location of the payer's bank, its bank identification code (BIC), the number of the correspondent account or sub-account;
6) name of the recipient of funds, his account number, taxpayer identification number (TIN);
7) the name and location of the beneficiary's bank, its bank identification code (BIC), the number of the correspondent account or sub-account;
8) purpose of payment. The tax payable is highlighted in the settlement document as a separate line (otherwise there should be an indication that the tax is not paid). Features of specifying the purpose of payment in relation to certain types of settlement;
9) the amount of the payment, indicated in words and numbers;
10) order of payment;
11) type of transaction in accordance with the "List of symbols (ciphers) of documents held on bank accounts"
12) signatures (signature) of authorized persons (persons) and seal imprint (in established cases).
Fields whose details do not have values are left blank
2. The concept and essence of the bank account agreement.
The appearance of the bank account agreement, apparently, was the result of the development of the bank deposit agreement by enriching its content with the bank's obligations to carry out more and more banking operations and transactions on behalf of depositors aimed at servicing them.
Before the emergence of bank accounts, their role was played by deposits for settlements. The active development of operations on bank accounts and the emergence of new types of bank accounts in Russia took place in the second half of the 19th century. after the reforms of Emperor Alexander II, already with the advent of dozens of banks in Russia.
By the time of the beginning of the modern legal reform of civil legislation regulating banking services in the mid-90s, the main codified normative acts were the Civil Code of the RSFSR and the Fundamentals of Civil Legislation of the USSR. These regulations contained very narrow rules governing the conclusion of bank account agreements and banking services to citizens in general.
2.1. Concept, form and conditions of the bank account agreement
Based on clause 845 of the Civil Code of the Russian Federation, under a bank account agreement, the bank undertakes to accept and credit funds received to the account opened by the client (account holder), follow the client's instructions to transfer and issue the appropriate amounts from the account and conduct other operations on the account.
Under a bank account agreement, the bank undertakes to accept cash and non-cash funds from the client and third parties, credit the specified amounts in non-cash form to the client’s account, execute the client’s order to transfer funds from the client’s account to third-party accounts, to client accounts in other credit institutions, issue funds to the client in cash, perform other operations provided for by law, the agreement or banking rules, and the client undertakes to pay the bank the remuneration stipulated by the agreement.
Such an understanding of the contract reflects its legal essence and purpose, and reveals the basic rights and obligations of its parties.
The legislation on the bank account agreement does not contain any special rules regarding its form. Therefore, it is necessary to proceed from the general norms of the civil code Russian Federation on the written form of transactions between legal entities and between themselves and with citizens. 2 In practice, a bank account agreement is drawn up, as a rule, in two ways: by drawing up and signing an agreement in the form of a single document and without such a document. The absence of a bank account agreement in the form of a single document signed by the parties does not mean the absence of a contractual relationship. The submission by the client of an application for opening an account is an offer, and the permissive inscription of the head of the bank is an acceptance. An essential feature of the bank's monetary obligation on a bank account is its abstract nature, i.e. the transaction is divorced from its foundation.
The object of the bank account agreement is the actions of the bank, for which the client is entitled to claim - the implementation of settlement transactions, maintenance of the account and payment of its balance. The purpose of the bank account agreement is to make settlement transactions on behalf of the client. The goal of the account holder entering into relations with the bank under a bank account agreement is to provide access to the system of non-cash payments. The subject of the bank account agreement is not limited to the services of the bank in opening and maintaining an account.
The agreement in question is concluded by banks in the course of their business activities. For this reason, the bank account agreement should be considered compensatory. The compensatory nature of the bank account agreement is confirmed by special rules on account lending
According to Art. 850 of the Civil Code of the Russian Federation, in cases where, in accordance with the bank account agreement, the bank makes payments from the account, despite the lack of funds, the bank is considered to have granted the client a loan for the corresponding amount from the date of such payment, and the relations of the parties are regulated by the rules on loans and credit.
In addition, in accordance with Article 851 of the Civil Code of the Russian Federation, in cases stipulated by the bank account agreement, the client pays for the bank's services for performing transactions with in cash on the account. A bank service fee may be charged by the bank at the end of each quarter from the client's funds in the account, unless otherwise provided by the bank account agreement. The Bank may also pay interest to the client for the use of funds on the client's account, the amount of which is credited to the account, unless otherwise provided by the bank account agreement. The amount of interest is credited within the terms stipulated by the agreement, and in the case when such terms are not provided for by the agreement, at the end of each quarter. Interest is paid by the bank in the amount determined by the bank account agreement, and in the absence of an appropriate condition in the agreement, in the amount usually paid by the bank on demand deposits.
The contents of the bank account agreement are the following rights and obligations of the parties. According to the bank account agreement, the bank is obliged to keep the client's account, timely and correctly perform settlement and cash transactions on behalf of the client, pay the client for the balance of funds on his account and keep banking secrecy. In a narrow sense, the content of a bank account agreement includes the obligation of a credit institution to perform or ensure the performance of non-cash settlement transactions or part of them.
When characterizing the legal relationship between the bank and the client, it is not enough to indicate their binding nature. First of all, it must be taken into account that this connection is based on the client's monetary claim to the bank.
Not later than the day following the date of receipt of the relevant settlement document, the bank is obliged to start executing the client's order for a non-cash transfer of funds by:
a) withdrawal of funds from the account,
b) sending settlement documents to another bank to complete the corresponding operation.
The established Art. 849 of the Civil Code of the Russian Federation, the terms for issuing and transferring money can be increased or reduced by law, banking rules. The term is not an essential condition of the bank account agreement, which may be unlimited. However, according to the statement of one of the parties to the contract, the term may become its essential condition, if an agreement is reached on this score. 3 In the latter case, the expiration of the period terminates the contract without judgment.
Under the term "day" used in Art. 849 of the Civil Code of the Russian Federation, should be understood as a “banking” or “operational” day, i.e. part of the bank's working hours when it carries out the relevant operations. The beginning of the period for making transactions on the account is determined by the moment the bank receives documents established by banking rules that allow the bank to correctly make entries on the client's account.
A feature of legal relations between a client and a credit institution is that the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client. four
The object of protection is information about the identity of the client, about their operations and the state of the account. Consequently, a credit institution is not obliged to keep confidential information about counterparties of its clients, as well as other information that is not directly related to a bank account (except for information about a client), if it has not assumed such obligations. The list of account transactions subject to bank secrecy is determined in accordance with Article 848 of the Civil Code. The secrecy also extends to the movement of deposits (size, time and amount of receipt or withdrawal, from whom and for what reasons the amounts are received, etc.). Information constituting banking secrecy must be obtained by a credit institution in the course of banking operations and other transactions.
Certificates on the accounts and deposits of individuals are issued by the credit institution to themselves, to the courts, and, if the prosecutor agrees, to the bodies of preliminary investigation in cases being processed by them.
In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
2.2. Basic legal relationship between the bank and the client
Conclusion of a bank account agreement.
In accordance with paragraph 1 of Article 846 of the Civil Code of the Russian Federation, when concluding a bank account agreement, a client opens a bank account on the terms agreed by the parties. At the same time, it should be borne in mind that in the case when a commercial bank, on the basis of the current legislation, banking rules, developed and announced a bank account agreement of a certain type, containing the same conditions for all applicants (the price of bank services, the amount of interest paid by the bank for the use of monetary funds on the client's account, etc., the bank, in accordance with paragraph 1 of clause 2 of Article 846 of the Civil Code of the Russian Federation, is obliged to conclude such an agreement with any client who has proposed opening an account on the specified conditions.
The bank is not entitled to refuse to open an account, the performance of relevant transactions for which is provided for by law, the bank's constituent documents and the permission (license) issued to it, except in cases where such a refusal is caused by the bank's inability to accept for banking services or is allowed by law or other legal acts (for example, if the person who wants to open an account does not have the proper documents, etc.)
Thus, the bank is obliged to conclude a bank account agreement with a client who has proposed to open an account on the conditions announced by the bank for opening accounts of this type that meet the requirements provided for by law and the banking rules established in accordance with it - approved by the Central Bank and supplemented in a particular bank by a banking systems.
If the bank unreasonably avoids concluding a bank account agreement, the client has the right to present him with the requirements provided for in paragraph 4 of Article 445 of the Civil Code of the Russian Federation, namely, to apply to the court with a demand to compel the conclusion of an agreement, as well as to demand compensation for losses caused by the bank's refusal to conclude a bank account agreement.
Opening of bank accounts for clients is carried out by banks, subject to the client's legal capacity (capacity). The basis for opening a bank account is the conclusion of a bank account agreement and the submission of all documents determined by the legislation of the Russian Federation. A bank account is opened for a client only if the bank has not only received all the required documents, but also identified the client. When opening a bank account, the bank must establish whether the person who applied to open the account is acting on his own behalf or on behalf of another person who will be a client.
The bank account is open with an entry about the opening of the corresponding personal account in the Book of registration of open accounts. Bank officials accept the documents required to open an account of the appropriate type, check the proper execution of documents, the completeness of the information provided and their reliability, on the basis of the documents received, check whether the client has legal capacity (capacity). For these purposes, bank officials interact with customers and their representatives, request and receive the necessary information.
Execution of the banking agreement accounts
Based on Article 848 of the Civil Code of the Russian Federation, the bank is obliged to perform for the client the operations provided for accounts of this type by law, banking rules established in accordance with it and business practices applied in banking practice, unless otherwise provided by the bank account agreement.
The legal essence of operations carried out by the bank on the account is reduced to the transfer in one form or another of rights in relation to the bank from the payer to the recipient of funds. Both the withdrawal of funds from the client's account and the crediting of funds to it are covered by the concept of account transactions. Legally, they all represent a form of execution of a bank account agreement. The Civil Code of the Russian Federation establishes the obligation of the bank to perform for the client-account holder all types of operations that are provided for the corresponding type of accounts, by law, banking rules or business customs used in banking practice. This, in particular, applies to cases where a particular bank does not have correspondent relations with some other, for example, foreign, banks, which excludes the possibility of carrying out certain operations. The bank must stipulate this circumstance when concluding an agreement (opening an account), otherwise the client will have the right to demand compensation from him for all losses caused to him by the refusal to perform a specific operation. According to Article 865 of the Civil Code of the Russian Federation, the payer's bank is obliged to transfer the appropriate amount to the beneficiary's bank, which, from the moment funds are credited to its correspondent account and receipt of documents that are the basis for crediting funds to the beneficiary's account, an obligation arises based on a bank account agreement with the recipient of funds, according to crediting the amount to the account of the latter 5 . Verification of the powers of persons who are granted the right to manage the account is carried out by the bank in the manner determined by the banking rules and the agreement with the client. In cases of transfer of payment documents to the bank in writing, the bank must check outward signs compliance of the signatures of authorized persons and the seal on the document submitted to the bank with the samples of signatures and seal imprint contained in the card transferred to the bank, as well as the presence of a power of attorney, if it is the basis for disposing of the funds on the account.
Write-off of funds from the account
According to the general rule of paragraph 1 of Article 854 of the Civil Code of the Russian Federation, funds are debited from the account by the bank on the basis of the client's order. In accordance with paragraph 3 of Art. 845 of the Civil Code of the Russian Federation, the bank is not entitled to determine and control the directions of use of the client's funds and establish other restrictions not provided for by law or the bank account agreement on its right to dispose of the funds at its own discretion. However, this right may be limited by law. A special case of such a restriction is the norm of paragraph 2 of Art. 854 of the Civil Code of the Russian Federation. It allows the possibility of debiting funds on the account without the order (consent) of the client:
- by court decision: in accordance with Part 1 of Article 31 of the Tax Code of the Russian Federation, tax authorities have the right to bring claims to courts of general jurisdiction or arbitration courts for compensation for damage caused to the state and (or) municipality due to illegal actions of the bank to write off funds from the account the taxpayer after receiving the decision of the tax authority to suspend operations, as a result of which it became impossible for the tax authority to collect arrears, debts on penalties, fines from the taxpayer;
- If it is provided for by law: based on Article 351 of the Customs Code of the Russian Federation, if the requirement to pay customs payments within the established time limits is not met, the customs authority makes a decision to recover funds from the payer's bank accounts in an indisputable manner. The decision on the indisputable collection is the basis for sending to the bank where the payer's accounts are opened, a collection order (instruction) for debiting the payer's accounts and transferring the necessary funds to the account of the customs authority. 6
If the funds on the client's account are not enough to satisfy all the claims made against him, the funds are debited in the order established by Article 855 of the Civil Code of the Russian Federation. Write-off of funds from the account for claims relating to one queue is made in the order of the calendar order of receipt of documents. The law provides for six queues for debiting funds from the client's bank account, which cannot be changed by the client's order:
- first of all, write-offs are carried out according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the recovery of alimony;
- secondly, write-offs are made under executive documents providing for the transfer or issuance of funds for settlements on the payment of severance benefits and wages with persons working under an employment contract, including under a contract, for the payment of remuneration to the authors of the results of intellectual activity;
- in the third place, write-offs are made according to payment documents providing for the transfer or issuance of funds for settlements on wages with persons working under an employment contract (contract), as well as on contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and the compulsory medical insurance;
- in the fourth queue, write-offs are made according to payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third queue;
- in the fifth place, write-offs are made under executive documents providing for the satisfaction of other monetary claims;
- in the sixth place, write-offs are made for other payment documents in the order of calendar priority.
When the bank writes off funds from the client's account and does not transfer them as intended, the client has the right to demand that the bank be held liable. 7 The bank is obliged to pay interest for the use of funds on the client's account until the respective amount is debited from the client's account. If the bank, without fulfilling the client's instructions, does not write off the corresponding amount of money from the account, the client has the right to demand both the application of the specified liability and the accrual of interest for the use of funds on the account (Article 852 of the Civil Code of the Russian Federation).
The court has the right to reduce the amount of the bank's liability when it is established that the client, through his actions, contributed to entering the bank. The Bank cannot be released from liability for non-fulfillment or improper fulfillment of obligations to fulfill the client's order in case of default by the communication service providing the relevant services. In doing so, it must be assumed that the rules on limited liability 8 do not apply in these cases.
Failure to fulfill obligations on the part of the bank sometimes entails serious consequences for its clients, which lead not only to a deterioration in their financial condition, but sometimes are the cause of their actual bankruptcy. At the same time, the bank is liable for violation of the rules for performing settlement operations on the basis of Art. 856 of the Civil Code of the Russian Federation.
So, in case of non-fulfillment or improper fulfillment of obligations under a bank account agreement, the bank, on the basis of the general norms of the Civil Code of the Russian Federation on liability (Chapter 25), may recover losses in the part not covered by the application of other measures of liability (Articles 856 and 866 of the Civil Code of the Russian Federation).
Termination of the bank account agreement and its legal consequences.
In accordance with paragraph 1 of Article 859 of the Civil Code of the Russian Federation, the bank account agreement is terminated at the request of the client at any time. The law does not provide for the possibility of limiting the client's right to terminate the contract.
Termination of the bank account agreement entails the following legal consequences:
a) termination of the bank account agreement is the basis for closing the client's account;
b) settlement documents in the card index to the closed account of the client must be returned to their compilers;
c) banks are obliged within five days to notify the tax authorities and the executive bodies of the social insurance fund located at the place of registration of the owners of closed accounts (Article 86 of the Tax Code of the Russian Federation) about the closure of client accounts;
d) termination of the agreement gives rise to the obligation of the bank to return the remaining funds to the client, pay interest stipulated by the agreement and accrued on the day the account is closed. In case of unlawful deduction by the bank of the balance of the closed account over the period established by Art. 859 of the Civil Code, this amount should accrue interest, provided for in Art. 395 GK. The amount of interest is determined by the discount rate of bank interest existing at the place of residence of the creditor, and if the creditor is a legal entity, at the place of its location on the date of fulfillment of the monetary obligation or its corresponding part.
Termination of the bank account agreement is the basis for closing the client's account. After the termination of the bank account agreement, credit and debit operations on the client's account are not carried out. After the termination of the bank account agreement, before the expiration of seven days after receipt of the relevant written application from the client, the balance of funds on the account is issued to the client or, at his direction, transferred by bank payment order. The funds received by the client after the termination of the bank account agreement are returned to the sender.
In connection with the termination of the bank account agreement, the client is obliged to hand over unused cash checkbooks with the remaining unused cash checks and stubs to the bank.
If the bank account agreement is terminated, by virtue of general provisions The Civil Code of the Russian Federation on set-off (Article 410) may apply the set-off of the client's claims to the bank for the return of the balance of funds and the bank's claims to the client for the return of the loan and the fulfillment of other monetary obligations, the due date of which has come.
2.3. Closing and reissuing accounts
Cancellation of the bank account agreement is possible unilaterally at the request of the client without explanation. The bank, in turn, can terminate the agreement only in cases specified by law (Article 859 TIC RF), namely:
- by decision of the body having the authority to liquidate or reorganize the enterprise; in case of declaring the enterprise bankrupt in the statutory procedure;
- upon making a decision to terminate activities due to non-compliance with the conditions established by law;
- in case of violation by the client of the terms of the contract for banking services, etc.
So, according to the decision of the court, the account can be closed:
- when the amount of funds kept on the client's account turns out to be lower than the minimum amount provided for by banking rules or the agreement, if such amount is not restored within a month from the date of the bank's warning;
- in the absence of transactions on the account during the year, unless otherwise provided by the agreement.
The credit organization is obliged to notify the owner in writing about the closure of his account within 10 days. The procedure for closing budget accounts is determined by the instruction of the Central Bank of the Russian Federation on cash execution of the state budget. Operations on settlement (current) accounts may be suspended by decision of state tax inspectorates.
Termination of the agreement entails the closure of the account and gives rise to the obligation of the bank to return the remaining funds to the client, as well as pay interest accrued on the day the account was closed. Within seven days after receiving the relevant application from the client, these funds must be paid to him through the cashier or transferred to the account indicated by him.
Upon liquidation of a legal entity, a decision and an order of the arbitration court on the liquidation of the legal entity are submitted, indicating the period of validity and a certified card with samples of signatures and seals of the liquidation commission. When transferring an account to another institution of the bank, all legal documents for opening an account are simultaneously transferred according to the inventory.
3. Procedure for opening and maintaining bank accounts of individuals.
On November 25, 2006, the Instruction of the Central Bank of the Russian Federation dated September 14, 2006 N 28-I “On opening and closing bank accounts, accounts for deposits (deposits)” came into force. An analysis of the provisions of this Instruction allows us to note that they generally contribute to the efficient implementation of banking operations, although in some cases they raise a number of issues that may complicate the application of the Instruction.
In paragraph 1 of Art. 846 of the Civil Code of the Russian Federation provides that when concluding a bank account agreement, a client or a person indicated by him opens a bank account on the terms agreed by the parties. In this case, the agreement is considered concluded from the moment when the parties, in the form required in such cases, have reached an agreement on all the essential terms of the bank account agreement.
According to the Instruction (clause 1.1), the opening of bank accounts for clients, deposit accounts is carried out by banks, subject to the client's legal capacity (capacity). A bank account, an account on a deposit (deposit) is opened for a client only if the bank has received all the documents provided for in the Instruction, and the client has been identified. Bank officials conduct it in the manner prescribed by the legislation of the Russian Federation, and also check whether the client has legal capacity (capacity).
It should be clarified that the procedure for identifying customers is carried out on the basis of the Regulation on the identification by credit institutions of customers and beneficiaries in order to counteract the legalization (laundering) of proceeds from crime and the financing of terrorism dated August 19, 2004 N 262-P, in accordance with which banks collect information and documents
etc.................
The bank is obliged to perform operations for the client provided for accounts of this type by law, banking rules established in accordance with it and business practices applied in banking practice, unless otherwise provided by the bank account agreement (Article 848 of the Civil Code).
The main operations performed on a bank account are:
- - crediting incoming funds to the client's account;
- - debiting certain amounts of money from the client's account.
The debiting of funds from the account is carried out by the bank according to the general rule on the basis of the client's order (clause 1 of article 854 of the Civil Code) or with his consent (article 874 of the Civil Code). Without the order of the client, the debiting of funds on the account is allowed by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client.
If there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account, these funds are debited from the account in the order in which the client's orders and other documents for debiting are received (calendar priority), unless otherwise provided by law.
If the funds on the account are not enough to satisfy all the requirements presented to it, the funds are debited in the following order (clause 2 of article 855 of the Civil Code):
first of all write-offs are carried out under executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the recovery of alimony;
in the second place write-offs are made under executive documents providing for the transfer or issuance of funds for settlements on the payment of severance benefits and wages with persons working under an employment contract, including under a contract, for the payment of remuneration under an author's agreement;
in the third place write-offs are made according to payment documents that provide for the transfer or issuance of funds for settlements on wages with persons working under an employment agreement (contract), as well as for deductions to Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation and compulsory medical insurance funds;
in the fourth turn write-offs are made according to payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third priority;
fifth write-offs are made under executive documents providing for the satisfaction of other monetary claims;
in the sixth place write-off is made according to other payment documents in the order of calendar priority.
Write-off of funds from the account for claims relating to one queue is made in the order of the calendar order of receipt of documents.
In case of insufficient funds on the account, the bank has the right to provide the client with a special type of loan - overdraft if such a possibility was provided for by the account agreement. An overdraft is expressed in the bank's making payments from the client's account for the amount specified in the contract in the absence of funds on this account. The rights and obligations of the parties related to crediting an account are determined by the rules on loans and credit (Chapter 42 of the Civil Code), unless otherwise provided by the bank account agreement. At the same time, the bank's monetary claims against the client related to crediting the account (Article 850) and payment for bank services (Article 851), as well as the client's claims to the bank for payment of interest for the use of funds (Article 852) are terminated by offset (Article 852). 410), unless otherwise provided by the bank account agreement. When offsetting the specified claims, the bank is obliged to inform the client about the offset in the manner and within the terms provided for by the agreement, and if the relevant conditions are not agreed by the parties, in the manner and within the terms that are usual for banking practice of providing clients with information on the state of funds on the respective account.
Without the order of the client, funds from the bank account can be debited by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client. The legislator did not define the concepts of "indisputable" and "acceptance-free" write-offs, often interpreting them as synonyms. Meanwhile, the concept of "indisputable" write-off is applied to those types of banking operations that are carried out at the request of state bodies and in favor of the state. Direct write-off is used in contractual legal relations, when the legal relations of the parties are of a contractual, reimbursable nature.
In an indisputable manner, funds are debited from the payer's account by decision of a court of general jurisdiction and an arbitration court on the basis of executive documents, the list of which is established by Art. 12 of the Federal Law "On Enforcement Proceedings". An executive document (without submitting settlement documents) can be sent by the exactor himself or by a bailiff to a credit institution, which is obliged to execute it in full or in part within three days (if there is not enough money in the payer's account).
If the funds are available on several accounts of the debtor, then the bailiff in the decision indicates from which account and to what extent the funds should be debited.
If the funds on the accounts of the debtor are seized, then the bailiff must indicate in his decision to what extent and in what order the seizure imposed by him is removed from the debtor's funds.
In the event that a bank or other credit institution receives a writ of execution from a bailiff, the execution of the claims contained in the writ of execution for the recovery of funds is carried out by transferring them to the deposit account of the bailiff unit.
In the event that a bank or other credit organization receives a writ of execution directly from the recoverer, the execution of the claims contained in the writ of execution for the recovery of funds is carried out by transferring them to the account specified by the recoverer.
A bank or other credit institution servicing the debtor's accounts shall fulfill the requirements contained in the executive document for the recovery of funds within three days from the date of receipt of the executive document from the recoverer or bailiff.
A bank or other credit organization may not execute a writ of execution in full only in three cases:
- 1) in the absence of funds on the accounts of the debtor;
- 2) when the funds on the specified accounts are seized;
- 3) in case of suspension of the operation with the client's funds.
If the funds available on the accounts of the debtor are not enough to fulfill the requirements contained in the executive document, then the bank or other credit institution transfers the available funds and continues further execution as funds are received on the account or accounts of the debtor until the requirements contained in the executive document are fulfilled in full.
The credit institution completes the execution of the executive document:
- 1) after the transfer of funds in full;
- 2) at the request of the claimant;
- 3) by order of the bailiff-performer on the termination (on the end, cancellation) of the execution.
In a similar manner, execution is carried out on the debtor's electronic funds, the transfer of which is carried out using personalized electronic means of payment and corporate electronic means of payment.
The procedure for foreclosure on the debtor's funds in foreign currency when calculating the debt in rubles is regulated by Art. 71 of the Federal Law "On Enforcement Proceedings".
Features of the procedure for acceptance and execution by credit institutions, subdivisions of the settlement network
Bank of Russia executive documents presented by recoverers (legal entities and individuals) directly to banks in which bank accounts of debtors are opened, are regulated by the Regulation of the Central Bank of the Russian Federation dated 10.04.2006 No. 285-P. This normative act provides for the right of the recoverer to submit a writ of execution directly to the bank in which the debtor's account is opened, provided that the recoverer has information about the debtor's accounts there and the availability of funds on them. The recoverer or his representative, acting on the basis of a power of attorney, submits to the bank the original of the enforcement document (its duplicate) and an application indicating the details of the recoverer's bank account to which the recovered funds should be transferred; last name, first name, patronymic, citizenship, details of an identity document, place of residence or place of stay, TIN (if any), details of a migration card and a document confirming the right to stay (residence) in the Russian Federation of the claimant-citizen; name, TIN or code of the foreign organization, state registration number, place of state registration and legal address of the claimant - legal entity.
The Bank draws up a collection order in the manner prescribed by the Regulations of the Central Bank of the Russian Federation of 03.10.2002 No. 2-P, and executes it within three days from the date of acceptance.
In an indisputable manner, funds are debited from the payer's accounts in cases expressly established by law on the basis of orders of collectors submitted by a collection order. At present, the attitude of the legislator to this form of write-off is ambiguous. In particular, by Resolution of the Constitutional Court of the Russian Federation of December 17, 1996 No. 20-P "In the case of checking the constitutionality of clauses 2 and 3 of part one of Article 11 of the Law of the Russian Federation of June 24, 1993 "On federal tax police bodies"" the indisputable procedure for collecting fines was recognized as exceeding constitutionally permissible restriction of the right enshrined in Part 3 of Art. 35 of the Constitution of the Russian Federation, according to which no one can be deprived of his property except by a court decision. Determination of the Constitutional Court of the Russian Federation of November 6, 1997 No. 111-0 "On the refusal to accept for consideration the request of the arbitration court of the Arkhangelsk region to verify the constitutionality of the provisions of Article 13 of the Law of the Russian Federation of December 27, 1991 "On the fundamentals of the tax system in the Russian Federation" "established the unconstitutionality of the write-off tax authorities in an indisputable order of the amounts of fines, as well as the entire amount of hidden or underestimated income (profit). Subsequently, by the Determination of the Constitutional Court of the Russian Federation dated 04.03.1999 No. 50-0 "On the complaint of a closed joint-stock company"Production and commercial company "Pyramid"" on the violation of constitutional rights and freedoms, paragraph 4 of article 14 of the Law of the Russian Federation "On currency regulation and currency control" "clarified that the conclusion of the Constitutional Court of the Russian Federation, which recognized that the indisputable procedure for collecting amounts of fines and other sanctions without their consent, i.e. in case of objections to the specified penalties, is unconstitutional, regardless of which body - the tax police or the tax service - decides to impose a penalty and what regulatory act grants it such a right, applies to all other authorities, including public services and fiscal authorities, since they may apply similar sanctions.A similar position can be traced in the Ruling of the Constitutional Court of the Russian Federation dated January 14, 2000 No. society "Production and commercial company "Pyramid"" on on violation of constitutional rights and freedoms by paragraph 4 of article 14 of the Law of the Russian Federation “On currency regulation and currency control” in connection with the petition of the Central Bank of the Russian Federation.
Without customer order funds can be debited from the account by order of the following creditors:
1) tax authorities in respect of the amounts of tax, fee, as well as penalties and fines at the expense of funds on the accounts of the taxpayer (payer of fees) - organization, individual entrepreneur or a tax agent - an organization, an individual entrepreneur in banks, as well as at the expense of his electronic money (Article 46 of the Tax Code). Foreclosure on funds on the accounts of a taxpayer (tax agent) is carried out in case of non-payment or incomplete payment of tax within the period established by law by decision of the tax authority by sending to the bank, in which the accounts of the taxpayer (tax agent) are opened assignments to write off and transfer the necessary funds to the budget system of the Russian Federation.
The procedure for sending to the bank an instruction from a tax authority to write off and transfer funds to the budget system of the Russian Federation from the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, as well as an instruction from a tax authority to transfer electronic funds of a taxpayer (tax agent) - an organization or an individual entrepreneur in electronic form, established by the Regulation of the Central Bank of the Russian Federation of December 29, 2010 No. 365-P.
The tax may be collected from the ruble settlement (current) accounts, and in case of insufficient funds - from the foreign currency accounts of the taxpayer (tax agent). Not produced collection of tax from the account on the deposit (deposit) of the taxpayer (tax agent), if the term of the deposit agreement has not expired. In the presence of this agreement, the tax authority has the right to instruct the bank to transfer funds from the deposit account to the settlement (current) account of the taxpayer/agent after the expiration of the deposit agreement, if by this time the order of the tax authority sent to this bank to transfer funds has not been executed .
The order of the tax authority to transfer tax amounts to the budget system of the Russian Federation is sent to the bank in which the accounts of the taxpayer (tax agent) are opened within one month from the date of the decision to collect, and is subject to unconditional execution by the bank in the order established by Art. 855 GK. The instruction is executed as funds are received on the relevant accounts no later than one business day following the day the funds are received on ruble accounts and no later than two on foreign currency accounts, if this does not violate the order of priority of payments established by Art. 855 GK.
If there is insufficient or no money on the accounts of a taxpayer (tax agent) - an organization or an individual entrepreneur, the tax authority has the right to collect tax from electronic money in the manner similar to that set out;
- 2) federal executive bodies, as well as bodies executing the budgets of the constituent entities of the Russian Federation and local budgets in the field of application of coercive measures for violations of budget legislation (part 1 of article 284, 284.1 of the BC) - in relation to the amounts of budget funds issued on a reimbursable basis, the term for the return of which has expired, as well as the amounts of interest for the use of the funds of the relevant budget, penalties for the untimely return of budget funds provided on a reimbursable basis and other amounts;
- 3) customs authorities - in relation to the amounts of customs payments, as well as penalties and fines (Article 153 of the Federal Law of November 27, 2010 No. 311-Φ3 "On Customs Regulation in the Russian Federation"), the decision of the customs authority on the indisputable collection is the basis for sending them to the bank in which the payer's accounts are opened, a collection order for debiting funds and transferring them to the account of the Treasury of Russia or to an account determined by an international agreement of the Member States Customs Union. Monetary funds are collected in an indisputable manner from the payer's accounts within the limits of the amounts of customs payments specified in the demand for payment of customs payments.
The collection of customs payments in an indisputable manner is made from the bank accounts of the payer, with the exception of loan accounts, unless otherwise provided by the legislation of the Russian Federation on taxes and fees. Collection of customs payments from bank accounts opened in foreign currency is carried out in an amount equivalent to the amount of customs payments payable in the currency of the Russian Federation at the exchange rate of the Bank of Russia on the day of actual collection.
provided by Art. 153 of the Federal Law "On Customs Regulation in the Russian Federation", the procedure for the indisputable collection of funds from the payer's bank accounts using a collection order (instruction) of the customs authority is similar to the requirements of Art. 46 NK.
In addition, it is allowed to collect customs payments at the expense of unspent balances of advance payments, a cash deposit, overpaid (collected) customs payments and other property of the payer in the manner provided for in Art. 157 of the above Law.
Banks and other credit organizations are obliged to execute the decisions of the customs authority on the indisputable collection of customs payments within one business day following the day of receipt of such a decision.
Possibility direct debit funds from the payer's account can be provided for by an agreement between the bank and the client (or an additional agreement thereto), which indicates which creditor has the right to write off amounts from the debtor without acceptance and for what products (goods, services rendered, work performed) and on the basis of what document (contract).
Bank liability occurs in cases of untimely crediting to the account of funds received by the client or their unreasonable debiting by the bank from the account, as well as failure to comply with the client's instructions to transfer funds from the account or to issue them from the account (Article 856 of the Civil Code) in the form of payment of interest on this amount in in the manner and in the amount provided for in Art. 395 GK. Arbitration practice in this case proceeds from the fact that the provisions of Art. 856 of the Civil Code, liability by its legal nature is a legal penalty and can be applied to a bank serving a client on the basis of a bank account agreement (and. 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 08.10.1998 No. 13/14).
According to Art. 395 of the Civil Code, the amount of interest is determined by the discount rate of bank interest existing at the place of residence (location) of the creditor, i.e. interest rate of the Bank of Russia for the use of centralized credit resources (refinancing rate).
At the same time, the bank’s liability for improper performance of operations on the account may not arise for all violations of the rules for performing settlement operations, but only for those directly related to the implementation of operations on the client’s account (Article 856 of the Civil Code), for example:
- – for untimely transfer of funds due to the client to his bank account;
- – unreasonable write-off of funds from the account;
- – failure by the credit institution to comply with the client's instructions to transfer funds from his bank account or to withdraw cash from the account;
- – improper execution of settlement documents.
- The provisions of this paragraph were recognized by the Decree of the Constitutional Court of the Russian Federation of December 23, 1997 No. 21-P as inconsistent with the Constitution of the Russian Federation, since the mandatory write-off of payment documents providing for payments to the budget and extra-budgetary funds meant only the collection of debt on these payments on the basis of instructions from tax authorities bearing undeniable character. In accordance with Part 3 of Art. 79 of the Federal Constitutional Law of July 21, 1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation", acts or their individual provisions, recognized as unconstitutional, become invalid. Therefore, federal laws on the budget of the Russian Federation of March 26, 1998 No. 42-FZ (Article 17), of February 22, 1999 No. 36-ΦЗ (Article 23), of December 31, 1999 No. 227-FZ (Article 35), of December 30, 1999 .2001 No. 194-FZ (Art. 37), No. 176-FZ of December 24, 2002 (Art. 32), No. 186-FZ of December 23, 2003 (Art. 31), No. 173-Φ3 of December 23, 2004 (Art. 26), dated 26.12.2005 No. 189-FZ (Art. 26), dated 19.12.2006 No. 238-ΦЗ (Art. 29), dated 24.07.2007 No. 198-FZ (Art. 5), dated 24.11.2008 No. 204-FZ (Art. 5), No. 308-ΦZ of December 2, 2009 (Article 5) and Xa 357-ΦZ of December 13, 2010 (Art. in paragraph 2 of Art. 855 of the Civil Code, if the funds on the taxpayer's account are insufficient to satisfy all the requirements presented to him, debiting funds under settlement documents providing for payments to the budgets of the budget system of the Russian Federation, as well as transferring or issuing funds for payroll settlements with lindens working under an employment contract, are made in the order of calendar priority of receipt of the specified documents after the transfer of payments made in accordance with the specified article of the Civil Code in the first and second turn.
- However, Art. 46 of the Tax Code expressly provides for an indisputable procedure for collecting fines and penalties at the expense of funds on the accounts of a taxpayer (payer of fees) - an organization, an individual entrepreneur or a tax agent of an organization, an individual entrepreneur in banks, which indicates non-compliance with the position of the Constitutional Court of the Russian Federation.
- The form of the decision of the customs authority on the recovery of funds in an indisputable manner was approved by order of the Federal Customs Service of Russia dated December 30, 2010 No. 2714.
- A bank account, as already noted, is a prerequisite for the implementation of cashless payments. Therefore, a bank account is mainly opened in order for certain operations to be carried out on it. In relation to these operations, from a legal standpoint, several issues seem significant. The first is the client's freedom of will and the rules for the bank's operations.
Legislation and banking practice establish the forms for exercising this freedom, the requirements for the execution of bank client orders, the rules and procedures for their execution by the bank. At the same time, the rules for making transactions on the account are developed both at the legislative level (for example, Chapter 46 of the Civil Code of the Russian Federation reproduced in large part the requirements for payment forms), and at the level of banking custom, as well as at the level of a specific agreement. The last level, however, can only be implemented within the limits provided for by law.
It is also necessary to keep in mind the existence of rules for the actual implementation of operations on accounts. They are established by the Rules of Conduct accounting and reporting in institutions of banks of the USSR, approved by the State Bank of the USSR and operating on the territory of the Russian Federation, as amended on August 31, 1990. In order to ensure the unity and standardization of banking operations, as well as the comparability of business results, these Rules establish that when opening accounts for clients, each client is assigned a serial number, which is then used to number all personal accounts. For these personal accounts, special forms and procedures for working with them are also established. In particular. The rules establish the procedure for carrying out operations on such accounts, compiling synthetic accounting materials based on analytical accounting documents, which are cash and accounting journals, summary cards, verification and turnover sheets, daily balance sheets. In detail, this regulatory act regulates the procedure for providing statements and their duplicates on account transactions.
All operations carried out on the account can be divided into:
- settlement operations consisting in debiting money from the account and crediting it to the account on behalf of the client or his counterparties, in which the bank performs an intermediary function and for which the legislation establishes general terms, as well as the rules for their implementation;
- operations that exercise rights and obligations under a bank account agreement, i.e. mutual settlements between the bank and the client, which are mainly regulated by the contract.
Receipts can be non-cash from the client's counterparties or in cash by depositing the proceeds at the cash desk. Often, for the repayment of such a loan, the first stage is provided, which does not comply with the law, but otherwise does not stimulate the loan. The term of the loan is calculated from the moment the payment is made.
Overdraft, i.e. bank credit for making payments is not a mandatory feature of any bank account agreement. The condition for crediting an account must be established by a specific agreement between the bank and the client. This condition may be included in the contract in advance. The loan is provided as needed, i.e. in case of a need to make a partial or full payment and there is no money on the account. The term of the loan is calculated from the moment the payment is made to the repayment of the client's debt.
The contract must also define the deadline for lending, and interest rate for the granted loan. Sometimes such a rate, term and other conditions are provided for by regulations. For example, in relation to the correspondent account of commercial banks with the Bank of Russia, it is established that:
- a correspondent account loan is provided in an amount not exceeding 25% of the funds commercial bank listed in the fund of required reserves;
- the term of the loan cannot exceed seven days;
- for the use of this loan, an interest rate of 1.2 of the discount rate of the Central Bank is charged.
- Operations for servicing the client's bank account are carried out by the bank subject to certain legal requirements. Article 849 of the Civil Code of the Russian Federation established the terms for carrying out transactions on the account. These terms are established for two types of transactions. First, we are talking about crediting to the client's account the money that came to him from his counterparties. This money is first credited to the correspondent account of the bank. The term for crediting them to the client's account begins from the moment when the bank learned about the ownership of the money by the client, i.e. from the moment of receipt of the payment document confirming the payment. This period is one day and can be changed in one direction or another only by agreement.
Next, you should pay attention to the fact that the calculation of terms is determined by the moment of receipt of payment documents, which can be payment orders, demands-orders, etc. Consolidated payment orders, statements of correspondent accounts, etc. are not such documents. In cases where customer service is carried out using electronic means, the terms may be calculated in a different way, if this is specifically provided for by the contract. If there is no such condition, the terms will be calculated from the moment of receipt of written documents.
the bank is obliged to credit the funds received to the client's account without later in the afternoon following the day of receipt of the corresponding payment document by the bank, unless shorter periods are provided for by the agreement. The bank is obliged to issue and transfer money from the client's account no later than the day following the receipt of the relevant payment document by the bank.
When determining these terms, it should be borne in mind that in banking practice, the concept of a “day” means not a calendar day, but a business day, i.e. the day of the bank's work, or rather, part of the bank's working time, during which payment documents are serviced on a certain date. In accordance with banking rules and customs, the transaction day usually ends two hours before the end of the bank's work, and all payment documents received after that are executed the next day. Some banks practice shorter terms, for example, up to 15 hours, with the same consequences.
In some cases, other deadlines are set. Thus, the agreement between Surgutneftegazbank and the Siberian Trade Bank on opening and maintaining a correspondent account stipulates that the term for the operation cannot exceed 24 hours from the receipt of a properly executed payment order. It is clear that when sending a payment document
1
and at certain hours this period will be shorter than one day. For a bank's correspondent account, if there are insufficient funds to carry out all operations, the Regulation on the procedure for conducting operations to write off funds from correspondent accounts of credit institutions, approved by the Bank of Russia on March 1, 1996, establishes that documents received before 11 a.m. are presented for payment on the same day, after - the next business day.
- As noted above, a bank account agreement is considered paid, unless otherwise provided in it. In this regard, the question arises about the forms and methods of mutual settlements between the client and the bank as an account operation. The client pays the bank's expenses for performing operations on the account, as a rule, after each quarter. In the same way, the bank pays interest to the client for the use of funds in the account. At the same time, the average daily balance of the account during the quarter is determined, and interest is charged on it. If they are not specified in the contract, it is considered that they should be equal to the interest on demand deposits paid by this bank (Article 852 of the Civil Code of the Russian Federation).
In this regard, the question arises of the possibility of offsetting claims for other obligations of the bank and its client. In this sense, the list of obligations for which offsetting can be carried out should be considered exhaustive and specifically established by law. Other obligations of the bank may be subject to the general rules on termination of obligations by set-off.
The set-off of counterclaims is carried out by the bank. The bank is obliged to inform the client about the set-off made in the manner and within the time limits established either by the agreement, most often when providing statements or exchanging information, or banking practice.
- For the implementation of operations on the account, it is essential, as it is not difficult to see, the state of the account, i.e. having money on it. Depending on the availability of money, the order of operations on the account is established. It is provided for two options:
- in the first case, when there is money on the account, all operations are performed in calendar order, i.e. as the due date for payment or receipt of a payment document;
- the second option is provided for those cases when there is no money in the account or it is not enough to pay off all claims received on the same day.
- first of all, write-offs are carried out under executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the recovery of alimony;
- in the second place, write-offs are made under executive documents providing for the transfer or issuance of funds for settlements on the payment of severance benefits and wages with persons working under an employment contract, including under a contract, for the payment of remuneration under an author's agreement;
- in the third place, write-offs are made according to payment documents providing for the transfer or issuance of funds for settlements on wages with persons working under an employment contract (contract), as well as for contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and the State Employment Fund population of the Russian Federation;
- in the fourth queue, write-offs are made according to payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third queue;
- in the fifth place, write-offs are made under executive documents providing for the satisfaction of other monetary claims;
All write-offs related to the same queue are made in calendar order. If there is not enough money to satisfy the claims that have come on the same day, they must be satisfied in the order in which they are listed in the law (Article 855 of the Civil Code of the Russian Federation).
It is easy to see that this article is a public law norm designed to weigh the requirements of different subjects and assign them a certain index. At the same time, the legislator was guided by two criteria - the essence of the claim, according to which maintenance and labor claims received priority over payments to the budget, as well as the presence of a court decision on the recovery of the corresponding amounts, depending on which claims of the same nature are assigned to different queues ( for example, the fifth and sixth line).
The application of this article is connected with the solution of one important problem - determining the reasons for the lack of money in the account. In practice, sometimes the lack of money in the account does not mean the absence of money from the client in principle. Firstly, he may have money in other accounts, such as foreign currency. Secondly, part of the money, according to the current practice, can be accumulated in loan accounts.
In this regard, the dispute that arose between JSCB Vyatka-Bank and the State Tax Service for the city of Kirovo-Chepetsk is of interest. Kirov region. The Bank credited funds received from the debtors of its customers, bypassing settlement accounts, to loan accounts to repay debts on its own loans. At the same time, the payment orders of clients on the transfer of taxes to the budget were registered on the settlement accounts as unfulfilled. The tax service considered such actions of the bank illegal and aimed at non-observance of the order of making payments, delaying the execution of taxpayers' instructions by the bank. The Presidium of the Supreme Arbitration Court of the Russian Federation, by a resolution of February 4, 1997, confirmed the legitimacy of the conclusions of the tax service1.
In view of the foregoing, one should once again emphasize the inadmissibility of any departmental interpretations about the non-application of this rule to certain types legal relations, for example, tax. The analyzed sequence exists precisely in order to harmonize the requirements of different industries, since within each industry there are no any objective criteria for assessing its own importance. Another thing is that the norm itself is not in place, since, being a public law one, it is included in the normative act regulating private law relations. In the mentioned letter of the Central Bank of the Russian Federation, the Ministry of Finance of the Russian Federation and the State Tax Service of the Russian Federation, an attempt was made to prove that Art. 855 does not apply.
Styufeeva Irina Viktorovna, lawyer.
In accordance with Art. 848 of the Civil Code of the Russian Federation "the bank is obliged to perform for the client operations provided for accounts of this type by law, banking rules established in accordance with it and business practices applied in banking practice, unless otherwise provided by the bank account agreement."
To date, there is no official definition of banking operations. MM. Agarkov defines banking operations as "transactions, the commission of which is the direct subject of the bank's activities, such as accepting deposits, accounting for bills, transfer, etc."<1>.
<1>Agarkov A.A. Fundamentals of banking law. The doctrine of securities. M.: Publishing house BEK, 1994.
In accordance with Art. 5 of the Federal Law "On Banks and Banking Activities" banking operations include: attraction of funds from individuals and legal entities in deposits (on demand and for a certain period); placement of these funds raised on its own behalf and at its own expense; opening and maintaining bank accounts of individuals and legal entities; making settlements on behalf of individuals and legal entities, including correspondent banks, on their bank accounts; collection of funds, bills of exchange, payment and settlement documents and cash services for individuals and legal entities; purchase and sale of foreign currency in cash and non-cash forms; attraction to deposits and placement of precious metals; issuance of bank guarantees; implementation of money transfers on behalf of individuals without opening bank accounts (except for postal orders).
The above list is exhaustive. However, for credit institutions, this list has been expanded by the legislator by allowing the following transactions: trust management of funds and other property under an agreement with individuals and legal entities; transactions with precious metals and precious stones in accordance with the legislation of the Russian Federation; leasing to individuals and legal entities special premises or safes located in them for storing documents and valuables; leasing operations; provision of consulting and information services, etc. A credit institution may carry out other transactions in accordance with the legislation of the Russian Federation.
In accordance with Art. 46 FZ of July 10, 2002 N 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia)" The Bank of Russia has the right to carry out the following banking operations and transactions with Russian and foreign credit institutions, the Government of the Russian Federation in order to achieve the goals provided for by this Federal Law: and sell government securities on the open market; buy and sell foreign currency, as well as payment documents and obligations denominated in foreign currency issued by Russian and foreign credit institutions; buy, store, sell precious metals and other types of currency values; conduct settlement, cash and deposit transactions, accept securities and other assets for storage and management; open accounts in Russian and foreign credit institutions on the territory of the Russian Federation and the territories of foreign states; carry out other banking operations and transactions on its own behalf in accordance with the business practices adopted in international banking practice. The legislator does not exhaust the list of banking operations for the Bank of Russia and allows it to carry out banking operations and transactions that are not established by law, but provided for by business practices adopted in international banking practice.
In science, some authors carry out the division of banking operations in a different way. For example, O.M. Oleinik<2>all banking operations are divided into operations that exercise rights and obligations under a bank account agreement (mutual settlements between the bank and the client), and settlement operations (debiting and crediting money to the account on behalf of the client or his counterparties), in which the bank performs an intermediary function.
<2>
In Art. 849 of the Civil Code of the Russian Federation establishes the terms for performing operations on the account. Thus, the bank is obliged to credit the funds received to the client's account no later than the day following the day the bank receives the corresponding payment document, unless a shorter period is provided for by the bank account agreement. The bank is obliged to issue or transfer funds from the client's account by order of the client no later than the day following the day the bank receives the relevant payment document, unless other terms are provided by law, banking rules issued in accordance with it or bank account agreement. Thus, the parties to the bank account agreement may agree on other terms for performing banking operations on an open account.
By virtue of paragraph 1 of Art. 854 of the Civil Code of the Russian Federation, funds are debited from the account by the bank on the basis of the client's order. Persons whose rights are certified by the client by submitting to the bank the documents provided for by law, the banking rules established in accordance with it and the bank account agreement (clause 1 of article 847 of the Civil Code of the Russian Federation) can act on behalf of the client in order to dispose of the funds on the account. As a rule, a document certifying the right of a person to dispose of funds is a card with sample signatures and an imprint of the client's seal, which is certified either by a higher body of a legal entity (if any) or by a notary. In addition, the bank has the right to require the client to submit other documents, such as a power of attorney, a protocol or an order to appoint persons entitled to sign on monetary settlement documents, in order to avoid cases of illegal debiting of funds from the client's account<3>.
<3>Decree of the Federal Arbitration Court of the Moscow District of June 26, 2007, July 2, 2007 N KG-A40 / 6008-07 in case N A40-41508 / 06-46-323 // The document was not officially published. See legal help system.
The legislator established that the client can give an order to the bank to write off funds from the account at the request of third parties, including those related to the fulfillment by the client of his obligations to these persons (clause 2 of article 847 of the Civil Code of the Russian Federation). The Bank accepts these orders, provided that they contain in writing the necessary data that allow, upon presentation of the relevant request, to identify the person entitled to submit it. In this case, it is necessary to take into account the recommendations of the Supreme Arbitration Court of the Russian Federation, which, in its letter N C-13 / OP-167 of 05/20/1993<4>indicates that the letter addressed to the bank or the text of the bank account agreement must indicate which creditor has the right to write off amounts from the debtor without acceptance and for which products (goods, services rendered, work performed, etc.). In these cases, the payer's bank, when deciding on the issue of the creditor's right to indisputably write off funds from the debtor, must be guided by the specified letter of the payer or the agreement concluded with the bank.
<4>Information letter of the Supreme Arbitration Court of the Russian Federation dated May 20, 1993 N C-13 / OP-167 "On Certain Recommendations Adopted at Meetings on Judicial Arbitration Practice" // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1993. No. 6.
Depending on the set of standard banking operations that a credit institution is obliged to perform on a bank account being opened, there are general or universal accounts that allow you to perform any operations of a bank client and are limited only by its competence and the rules for carrying out specific operations (settlement, current (ruble, currency) account ), as well as target or special accounts (budget, investment, etc.), suggesting the intended use of money and the presence of an entity that controls such use.
In accordance with Art. 30 of the Federal Law "On Banks and Banking" customers have the right to open the required number of settlement, deposit and other accounts in any currency in banks with their consent, unless otherwise provided by federal law.
The current account is intended for making settlements related to the implementation of entrepreneurial activities. On this account, all operations related to the sale of goods, the provision of their production, production and other expenses are performed. Revenue is credited to these accounts, funds are debited from them for issuing wages employees, payment for the cost of purchased goods, services, various taxes and fees are paid, etc. Settlement accounts are also opened for most non-profit organizations - foundations, associations, consumer cooperatives, institutions, etc. Settlement accounts may also be opened for branches and representative offices of a legal entity at the request of the latter, if they conduct commercial activities.
The concept of "current account" is currently given only in relation to individuals. So, in accordance with clause 1.1.1 of the Regulation "On the procedure for making cashless payments by individuals in the Russian Federation" (approved by the Central Bank of the Russian Federation on April 1, 2003 N 222-P), a current account of an individual is understood to be a bank account opened by an individual in a bank on the basis of a bank account agreement providing for settlement transactions not related to entrepreneurial activities<5>.
<5>Regulation "On the procedure for making cashless payments by individuals in the Russian Federation" (approved by the Central Bank of the Russian Federation on April 1, 2003 N 222-P) // Bulletin of the Bank of Russia. 05/08/2003. N 24.
For example, O.M. Oleinik understands the current account as the financing accounts of non-commercial legal entities, representative offices, structural divisions that do not carry out entrepreneurial activities. She also indicates that the current account is intended for storing money and targeted financing of its owner, settlement transactions<6>.
<6>Civil law. Part two. Textbook / Ed. A.G. Kalpin. M.: Jurist, 2001.
The mode of the current (ruble, currency) account implies a limitation of the range of transactions performed, but is not associated with a strictly targeted use. Therefore, they are opened in rubles, as a rule, to branches and representative offices of legal entities, since in this case the volume of operations on the account is determined by the legal entity that created them, depending on the powers granted to them. Current currency accounts are opened for customers to make settlements in foreign currency. Operations on such accounts are carried out taking into account the requirements of currency legislation.
In accordance with paragraph 2.4 of the Instruction of the Central Bank of the Russian Federation of September 14, 2006 N 28-I "On opening and closing bank accounts, accounts for deposits (deposits)"<7>budget accounts are opened in cases established by the legislation of the Russian Federation, to persons carrying out operations with funds from the budgets of all levels of the budgetary system of the Russian Federation and state non-budgetary funds of the Russian Federation. Budget accounts are opened for legal entities when funds are allocated to them from the budgets of various levels for certain types activities. The form of providing funds can be subsidies, subventions, grants and other types of state appropriations and financing, if it is not carried out by crediting money to a current or current account.
<7>Instruction of the Central Bank of the Russian Federation of September 14, 2006 N 28-I "On the opening and closing of bank accounts, accounts for deposits (deposits)" // Bulletin of the Bank of Russia. October 25, 2006. N 57.
It is impossible to ignore bank accounts, which are also one of the types of accounts and are called correspondent. In accordance with the Regulation "On the required reserves of credit institutions" (approved by the Central Bank of the Russian Federation on March 29, 2004 N 255-P), a correspondent account is a bank account opened by a credit institution in the subdivision of the settlement network of the Bank of Russia at the location of the head office on the basis of a correspondent account agreement<8>. By virtue of clause 2.5 of the Instruction of the Central Bank of the Russian Federation of September 14, 2006 N 28-I "On opening and closing bank accounts, accounts for deposits (deposits)", correspondent accounts are opened for credit institutions for interbank settlements (both for their obligations and for obligations their clients). Each credit institution is required to have a ruble correspondent account with the Bank of Russia. Maintenance of correspondent accounts in foreign currency is carried out by credit institutions in the presence of a currency license of the Bank of Russia. The Bank of Russia, in turn, opens correspondent accounts in foreign currencies.
<8>Regulations on the required reserves of credit institutions (approved by the Central Bank of the Russian Federation on March 29, 2004 N 255-P) // Bulletin of the Bank of Russia. 04/30/2004. N 25.
Target (special) accounts imply a strictly targeted use of funds and the presence of an entity that controls this use. These include accounts for settlements on activities related to trust management, special bank accounts of residents in foreign currency and non-residents in the currency of the Russian Federation, special brokerage accounts, etc. So, for example, accounts for settlements on activities related to trust management are opened for credit institutions by trustees. For settlements in rubles, these accounts are opened at institutions of the Bank of Russia at the place where a correspondent (subcorrespondent) account of a credit institution (branch) is opened, and for settlements in foreign currency - in other authorized banks (clause 1, article 1018 of the Civil Code of the Russian Federation, clause 4.4 of the Instruction "On the Procedure for Carrying Out Trust Management Operations and Accounting for These Operations by Credit Institutions of the Russian Federation"<9>).
<9>Order of the Central Bank of the Russian Federation of 02.07.1997 N 02-287 "On approval of the Instruction "On the procedure for the implementation of trust management operations and accounting for these operations by credit institutions of the Russian Federation" // Bulletin of the Bank of Russia. 08.07.1997. N 43.
Thus, the parties under the bank account agreement may choose one of the established types of accounts, depending on the presence of a combination of the above features. At the same time, the parties to the agreement may exclude certain operations performed by the credit institution from the range of services provided (Article 848 of the Civil Code of the Russian Federation).
As for the legal regulation of the above accounts, Chapter 45 of the Civil Code of the Russian Federation applies in full to general (universal) accounts. The rules of this chapter apply to correspondent and other accounts of credit institutions, unless otherwise provided by law, other legal acts or banking rules established in accordance with them (Article 860 of the Civil Code of the Russian Federation). These rules apply to currency accounts subject to the specifics established by the Federal Law "On Currency Regulation and Currency Control" (Clause 3, Article 317 of the Civil Code of the Russian Federation). Purpose (special) accounts carry out only the operations provided for by their purpose. The provisions of Chapter 45 of the Civil Code of the Russian Federation can be applied to them only if this does not entail a violation of the principle of targeted use of funds.
commercial banks.
Street ATMs.
Banks and other credit institutions for settlements within the country open each other ... accounts.
Correspondent.
The establishment of rules, terms and standards for the implementation of cashless payments, coordination, regulation and licensing of the organization of settlement systems are assigned to:
Central Bank of the Russian Federation.
Correspondent bank accounts are opened:
Based on interbank agreements.
For settlement services between the bank and the client is:
Bank account agreement.
Cashless payments are carried out:
On the basis of settlement documents of the established form and in compliance with the relevant document flow.
Currently, the most common form of non-cash payments in Russia are:
C. Payment orders.
It is based on the order of the enterprise to the servicing bank to transfer a certain amount from its account to the account of the recipient of funds.
Payment order
Payment orders are valid for... days.
Depending on the agreement of the parties to the transaction, payment orders can be:
Urgent, early and deferred.
Urgent payment orders can be used:
For advance payments, shipment of goods and partial payments for large transactions.
The form of payment is banking operation, through which the issuing bank, on behalf of and at the expense of the client, on the basis of settlement documents, takes actions to receive a payment from the payer.
Collection.
The disadvantage of the letter of credit form of payment is:
Slowdown in turnover, diversion of the buyer's funds from economic turnover for the duration of the letter of credit.
This is a written instruction from one credit institution to another to pay a certain amount to an individual or legal entity upon fulfillment of the conditions specified in the order.
Letter of credit
A letter of credit opened with a nominated bank by giving it the right to write off the entire amount of the letter of credit from the account of the issuing bank maintained by it is called:
Non-commercial.
With a letter of credit form of payment, products are paid for:
upon receipt by the buyer.
A letter of credit that can be changed or canceled by the issuing bank without prior agreement with the supplier is called:
Revocable.
The form of settlement assumes that the payer instructs the bank serving him to make, at the expense of the funds previously deposited on the account, or under the guarantee of the bank, payment for inventory items at the location of the recipient of funds on the terms provided by the payer.
A. Letter of credit.
A letter of credit that cannot be changed or canceled without the consent of the supplier in whose favor it was opened is considered:
Irrevocable.
Payment from a letter of credit in cash:
Not allowed.
A feature of the circulation of letters of credit in Russia is that they:
Can be used for settlements with only one supplier and cannot be forwarded.
The validity period and procedure for settlements under a letter of credit are established:
Agreement between the payer and the supplier.
The advantage of the letter of credit form of payment is:
Providing a guarantee of payment for the product supplier.
Letters of credit, at the opening of which the issuing bank transfers the payer's own funds or provides him with a loan at the disposal of the supplier's bank (executing bank) for the entire duration of the obligations of the issuing bank, is called:
Covered.
The payer is granted the right to refuse payment in case of a letter of credit form of payment if:
Contract violations found.
Checks can be used:
Individuals and legal entities.
The form of checkbook forms is established by:
Central Bank of the Russian Federation.
The check must be presented for payment to the bank within 10 days.
A check issued by a Russian bank may circulate in the following territories:
Only Russia.
Settlements by checks between individuals:
Allowed if the checks are nominal.
A checkbook can be issued by a bank without depositing funds on the client's account if the clients are:
Business entities with a stable financial position and stable payment discipline.
Acceptance of checks in deposits of citizens to their personal accounts:
Allowed.
Banks pay customer checks:
From his separate special account.
A bank customer can write checks:
For any amount within the limits of the funds deposited in the bank.
A check, payment on which is made only in favor of the person indicated in the check, is called:
Nominal.
Banks carry out operations on customer accounts on the basis of:
Settlement documents.
Bearer.
Checks are not transferable.
Nominal.
The following can be used as settlement documents submitted for offsetting mutual claims:
Any accounting documents.
Checks transferred to another person by simple delivery are called:
bearer.
A check, the payment on which is made both in favor of the person indicated in the check, and by his order to another person, is called:
Order.
The permission of the bank to carry out a transaction using a bank plastic card, which gives rise to the obligation of the bank to transfer money according to the settlement document drawn up with its help, is called:
Settlements between banks in Russia are carried out:
Through the settlement center of the Bank of Russia, on correspondent accounts of banks and on a clearing basis.
Checks transferred by issuing an endorsement (endorsement) are referred to as:
Order.
The activity of a commercial bank servicing plastic cards is called:
Acquiring.
Settlements between clients of one bank institution are carried out:
Write-off or crediting of funds on customer accounts, bypassing the correspondent account of the bank.
A plastic card enables its owner to make settlements with the bank's funds, which can be provided to him within a certain limit established by the bank.
Credit.
Calculations by offsetting mutual requirements between bikes:
Allowed without restrictions.
The forms of non-cash payments do not include:
Shares and bonds.
Set the correspondence of the indicated methods of transferring checks to the types of checks.
Set the correspondence of the indicated characteristics to specific forms of cashless payments.
|
Form of non-cash payments |
Characteristic |
|
1. Payment orders |
1. The most common form of cashless payments in Russia |
|
2. Letters of credit |
2. Preliminary deposit by the payer of funds on the account for payment for products |
|
3. Collection |
3. Implementation by the issuing bank of actions to receive payment from the payer |
|
4. Clearing |
4. Listing the balance of counterclaims |
|
5. Nominal, bearer, order |
Establish the correspondence of the indicated possibilities for changing the conditions of letters of credit to specific types of letters of credit.
Set the conformity of the indicated payments on the check to the types of checks.
