The concept of content and features of banking. Banking legal relations, their structure, features and types. Banking legal relations have several characteristics

Relations arising in the process of banking activities by credit institutions, in which the entities are bound by mutual rights and obligations.

Mandatory a sign of a banking relationship is the presence of a special subject:

• banking credit organization (commercial bank);
• non-bank credit organization;
• Bank of Russia, which is both a subject of regulation, since it issues mandatory regulations, and an object of regulation, since it must also obey these acts.

Grounds emergence of a banking legal relationship:

• rules of law;
• administrative act;
• agreement or unilateral transaction;
• causing harm.

Banking legal relations have the following specific signs:

1) the presence of a special entity in the form of a bank or other credit organization;

2) the presence of a special facility;

3) indirectness of the state’s monetary policy through banking legal relations, which means the absence of free will of the parties in determining the forms of legal relations and the rules for their implementation, direct or indirect participation of the state in these legal relations.

Types of banking legal relations:

1) depending on the subject composition, this may be a legal relationship between:

• bank and client;
• two or more commercial banks;
• Central Bank of the Russian Federation and commercial banks;
• The Central Bank of the Russian Federation and the government and other authorities;
• banks regarding the creation of unions, associations, etc.;
• a credit organization and its internal structural divisions, as well as with separate structural divisions;

2) depending on the nature of banking operations, determine:

• passive legal relations, in which the bank acts as a debtor, for example, a bank deposit or a bank account;
• active legal relations– when the bank acts as a creditor, for example a loan agreement;
• mediation legal relations– when the bank takes part as an intermediary in non-cash payments between various economic agents - individuals and legal entities, firms, the state, and other banks;

3) in accordance with the main functions inherent in any bank, banking legal relations can be distinguished:

• accumulation of funds, i.e. passive legal relations;
• provision of loans, i.e. active legal relations;
• assistance in payment turnover – intermediary;

• property legal relations associated with funds as a special type of property;
• non-property legal relations related to ensuring bank secrecy, protecting the bank’s business reputation, using various names, etc.;
• organizational legal relations related to the construction of the internal structure of both the bank itself and the banking system as a whole.

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INTRODUCTION

Conclusion

REFERENCES USED

INTRODUCTION

The value of banking law is its orientation capabilities. Taking into account the above, we believe that with proper organization of banking lawmaking and implementation (primarily application) of banking law, it can ensure the following conditions of the banking system and banking business.

Banking legal relations are social relations regulated by private and public rules of law that develop in the process of the activities of banks and other credit organizations that realize their specific legal status and use money and other financial means as means of circulation, savings and as a commodity.

This is exactly what will be discussed in this test.

1. Constitutional foundations of banking law

subject structure banking legal relationship

The constitutional foundations of banking law form those norms of the Constitution Russian Federation, which to one degree or another relate to banking activities or establish restrictions on this activity.

From the standpoint of regulatory influence in the constitutional foundations of banking law, it is necessary, in the same way as is proposed in the literature on the theory of law, to highlight constitutional principles-legal provisions that contain only a certain general idea, principle.

In addition to constitutional principles-legislative provisions, it is customary to distinguish principles-norms, i.e. such constitutional norms that do not require the adoption of sectoral laws, but have a clearly defined regulatory potential. In the field of banking law, these principles include those rules that regulate the procedure for appointing the management of the Bank of Russia and its reporting. So, in accordance with Art. 103 of the Constitution of the Russian Federation, the appointment and dismissal of the Chairman of the Central Bank of the Russian Federation is within the competence of the State Duma of the Russian Federation, which considers this issue on the initiative of the President of the Russian Federation. In the financial services market, the only issuer of money is the Central Bank of the Russian Federation (Article 75 of the Constitution of the Russian Federation). No additional regulations are required to implement this provision, and the fact that a similar rule is contained in the Law on the Central Bank means a simple repetition of an already existing regulation.

The significance of the constitutional foundations of banking law is as follows. Firstly, they program banking activities, extending the legal regime of entrepreneurship to it and establishing freedom of movement of capital and financial services (Article 8 of the Constitution of the Russian Federation).

The state, at the level of the Constitution, creates guarantees for the scope of implementation of banking services, while establishing some rules and principles. Among the principles we can consider those specified in Art. 8 of the Constitution of the Russian Federation freedom of economic activity, competition, equal protection of all forms of property, etc.

Secondly, constitutional foundations establish that minimum guarantee of the rights and interests of participants in banking legal relations, which cannot be limited by special banking regulations. Such rights and freedoms include the right to property, the right to information, the right to defense, etc.

At first glance, it may seem that these rights and freedoms relate only to the status of a citizen in the Russian Federation and cannot extend to legal entities. In reality, this is not the case, and this can be confirmed by the decision of the Constitutional Court of the Russian Federation of December 17, 1996 in the case of checking the constitutionality of paragraphs. 2 and 3 parts of the first art. 11 of the Law of the Russian Federation of June 24, 1993 “On the federal tax police authorities.” This resolution is essential for solving a large number of problems, and not only problems of banking law.

In this case, it should be noted that the Constitutional Court of the Russian Federation established that the constitutional rights of man and citizen apply to legal entities to the extent that these rights can be applied to them. This conclusion seems quite reasonable, and it can be proven by the reverse principle. If we assume that legal entities are not covered by the Constitution of the Russian Federation (and, by the way, it does not even mention the term “legal entity”), then it will be necessary to recognize that in the legal field of our state there are some areas or segments that do not fall under the constitutional impact. This, in turn, will contradict the instructions of the Constitution of the Russian Federation that it is valid throughout the territory of the Russian Federation and is an act of supreme legal force (Article 4).

Consequently, constitutional guarantees of rights and legitimate interests should apply to both banks as legal entities and their clients, regardless of the legal form of the latter.

Thirdly, constitutional norms create the basis for uniform banking legal regulation. This is expressed in the fact that, in accordance with Art. 71 of the Constitution of the Russian Federation, the establishment of the legal foundations of the single market, financial, currency, credit regulation, and money issue are within the competence of the Russian Federation. Therefore, any acts of the constituent entities of the Russian Federation adopted on these issues should be considered illegal.

2. Characteristics and structure of sources of banking law

Defining the concept of sources of banking law presupposes an initial understanding of the very concept of a source of law in principle, then the establishment of a set of sources of law correlated with banking activities, which, as we will show below, is not quite simple, and finally, a description at least in general terms of their content and construction on this basis of some scheme of sources of banking law. Analysis of sources should give the lawyer a method for searching, coordinating them and, on this basis, applying them to those legal relations that, for one reason or another, require appropriate qualifications.

When defining the concept of a source of banking law, one should obviously proceed from generally known and accepted approaches in legal science and practice.

Previously, such an understanding of the sources of law, which can be considered a broad interpretation, was expressed in the general literature and met with some objections. However, if the regulatory impact of the sources is taken into account, i.e. their ability to determine the specific legal behavior of banks and their clients, it is necessary to use this broad, although perhaps unconventional for lawyers, understanding of the sources of law, including all existing regulators that have an external form of expression.

Regulatory confirmation of the need to use such an understanding of the sources of banking law can be considered found in many legislative acts references to “banking rules,” “banking customs,” and “banking practices.”

In accordance with the approach under consideration, among the sources of banking law, in addition to traditional regulations, one should also mention banking legal thinking, which has already been discussed above. It is based on the economic and financial needs of banking, and forms an assessment of the effectiveness and objectivity of legal norms and significantly adjusts the general business customs of the country. In this work, it is not possible to consider this source in detail, but it must be remembered that the practice of applying or not applying certain legal norms mainly depends on legal thinking.

General features of banking legal regulation are:

a) multi-level nature of regulation, 80% of which falls on subordinate legislation regulations;

b) the inconsistency of many legal acts;

c) the presence of regulations adopted in pre-market times;

d) dynamics of legal regulation;

e) lack of official sources or official publication of many previously published sources.

3. Regulatory capabilities of banking law

It is known that any society, including the Russian one, goes through various stages of assessing the possibilities of law - from complete neglect to complete revaluation and exaggeration. Both of these trends are dangerous, although they have different consequences.

In this regard, it would be necessary to discuss the question of the real possibilities of banking law - how much it can optimize its banking activities or go against tactical financial needs, as well as the interests of one of the participating groups.

The positive possibilities of banking law are, in principle, limited. Not every legal norm that exists on paper can actually apply. Actually, capabilities are the potential for solving certain problems, therefore it is the real capabilities that determine the extent to which a more or less general task can be solved under given conditions. In principle, the positive possibilities of banking law are limited by the economic conditions of banking and other business activities, due to which the introduction of certain requirements and rules turns out to be ineffective or ineffective.

The real positive possibilities of banking law also determine the qualitative and quantitative requirements for the formulation of the problem being solved, so that its solution is achievable in a certain time and with a certain expenditure of effort and money. At the same time, it is necessary to take into account such costs as a decrease in profitability and speed of money turnover, loss of confidence of banking participants in banks, etc.

The value of banking law is its orientation capabilities. Taking into account the above, we believe that with proper organization of banking lawmaking and implementation (primarily application) of banking law, it can ensure the following conditions of the banking system and banking business:

The stability of their organizational, managerial and regulatory frameworks and the predictability of banking behavior;

Reliability of banking operations and liquidity of commercial banks and their resources;

Availability of banking services;

Balance of interests of society, banking system, bank, clients, third parties;

Transparency and controllability of banking activities.

It can also be assumed that banking law can also have a positive impact on the rationalization of banking services.

4. Banking legal relations and types

It is hardly advisable, and even possible in principle, to give an exhaustive definition of banking legal relations. But if, nevertheless, following the traditions of Russian (Soviet) jurisprudence, we try to do this, then the definition will look like this. Banking legal relations are social relations regulated by private and public rules of law that develop in the process of the activities of banks and other credit organizations that realize their specific legal status and use money and other financial means as means of circulation, savings and as a commodity.

Types of banking legal relations can be distinguished depending on the subject composition:

a) between banks and clients;

b) between two commercial banks regarding the implementation of banking operations;

c) between the Central Bank and banks;

d) between banks regarding the creation of unions, associations, clearing houses and other derivative entities - membership legal relations;

e) between the Central Bank and the government - relations of mutual representation;

f) between the Central Bank and the highest bodies of representative power - appointment and reporting.

In addition, banking legal relations can be classified depending on the nature of banking operations, i.e. legal relations are identified that mediate:

a) passive banking operations in which the bank acts as a debtor - the institution of a bank deposit, bank account, issue of securities;

b) active banking operations in which the bank participates as a creditor - loan agreements and agreements on the assignment of monetary claims;

c) intermediary banking operations - settlement legal relations;

d) auxiliary banking operations - legal relations regarding the provision of information and other services.

Depending on the content, legal relations can be classified as follows:

a) property; related to cash as a type of property;

b) non-property related to ensuring bank secrecy, the use of certain names, protecting the bank’s business reputation, assigning a rating, etc.;

c) organizational, related to the construction of internal organizational structure the bank itself and the banking system as a whole.

The grounds for the emergence of banking legal relations may be the following:

a) a rule of law, for example, when implementing the state’s monetary policy or forming required reserves;

6) an administrative act, such as the issuance of a license or its revocation;

c) an agreement or unilateral transaction;

d) causing harm (this is controversial and needs additional justification).

5. Subjects and structure of banking legal relations

The subject composition of banking legal relations is determined by all of the above and involves the identification of several levels:

a) clients or, as they say, clientele of banks - citizens, legal entities, their separate units, other organizations;

b) credit organizations and, above all, banks;

c) the bank as a state executive body and the center of the banking system;

d) derivative banking entities - banking unions, associations, leagues, groups, concerns, clearing houses,

e) authorities performing the functions of state regulation of banking activities and interaction with the banking system.

Legal relations or legal connections that differ in their content are established between these entities. It should be borne in mind that it is the legal connection that is a constructive feature of the legal relationship.

When analyzing the legal connections between participants in banking legal relations, one must constantly keep in mind that they are based on legal connections or legal relations between clients. This expresses the purpose of banking legal relations, which arise and exist only if there is a clientele of banks, whose interests must be taken into account and protected in the first place. But, of course, these legal connections are outside the scope of banking law.

CONCLUSION

Most of the rules of banking law require serious thought, since they use banking terms that are far from a lawyer. Many problems of legal regulation of banking activities have not yet been resolved and are not even discussed in the legal literature. In addition, the study of banking law presupposes a good knowledge of the basic theoretical principles and norms of civil and economic (entrepreneurial) law.

Beyond the scope of my work were such complex and interesting topics as banking audit, taxation of income from banking activities, the work of banks with securities etc., but still general information about “banking law” can really be gleaned from the presented work.

REFERENCES USED

1. Constitution of the Russian Federation.

2. Civil Code of the Russian Federation.

3. Federal law“On the Central Bank (Bank of Russia).”

4. Federal Law “On Banks and Banking Activities”.

5. Federal Law “On Currency Regulation in the Russian Federation”.

6. Alekseeva D.G., Khomenko E.G. Banking Law: Questions and Answers. - M.: Jurisprudence, 2005. p.208.

7. Bratko A.G. Banking law. Theory and practice. Tutorial. - M.: Prior, 2004

8. Gracheva E.Yu. Financial law: Schemes, comments / Textbook. - M.: New Lawyer, 2005, p. 104.

9. Lavrushin O.I. Banking. Publishing House Finance and Statistics 2003 With. 672.

10. Oleinik O.M. Fundamentals of banking law: A course of lectures.-M.: Yurist, 1999.- p. 424.

11. Shchupletsova Yu.I. Banking law. Perm, 2005

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Concept and features of financial legal relations. Types of financial legal relations: budgetary, tax legal relations, insurance relations, currency legal relations, legal relations in the field of banking. Norms of financial law.

In the theory of law, a legal relationship is understood as a social relationship regulated by the norms of a specific branch of law, the participants of which have certain rights and responsibilities. Through the rules of law, the actual relationship between two or more subjects acquires the character of a legal connection and is clothed in legal form. The legal relationship is a conscious-volitional relationship; it arises on the basis of legal norms and represents the correspondence of the subjective rights and obligations of its participants.

Banking legal relationship there is a public attitude regulated by the norms of banking law that develops regarding the implementation of banking activities. A more detailed definition was formulated by O. M. Oleinik: banking legal relations are social relations regulated by private and public norms of law that develop in the course of the activities of banks and other credit institutions that realize their specific legal status and use money and other financial instruments as means of circulation, savings and as a commodity .

According to A. A. Tedeev, banking legal relations are state-protected social relations that arise in the field of banking activities in the process of functioning of the banking system, which represent a socially significant connection between subjects through the rights and obligations provided for by the norms of banking law. At the same time, the named author rightly notes that “the banking legal relationship is a monetary relationship in its economic essence, consisting in the redistribution of funds between sectors of the economy and regions of the country, in the effective provision of settlements.”

Representatives of the Department of Business Law of the Ural State Law Academy understand banking legal relations as individualized legal relations in the form of corresponding subjective rights and legal obligations that arise between their participants regarding or in the process of carrying out banking activities.

We can highlight two characteristic features of banking legal relations that distinguish them from legal relations in other branches of law. The first feature of a banking legal relationship is its special subject composition: one of the parties in such a legal relationship is always a credit institution or the Bank of Russia. The second feature is its connection, direct or indirect, with banking activities. There will be a direct connection when the banking legal relationship develops in the process of carrying out banking activities as a type of entrepreneurial activity. In this case, the banking legal relationship is of a property nature and is associated with funds as a type of property. Such a legal relationship has a non-property nature if its object is, for example, the business reputation of a credit organization, bank secrecy as a specific type of information, etc. The indirect connection with banking activities is manifested in organizational relations, which are a necessary prerequisite for the implementation of banking operations and transactions. These are relations to create a credit organization, build a banking system, implement banking supervision, etc.

Based on this division, it is possible to construct the first classification of banking legal relations, based on their functional orientation.

• 1. Property – related to funds in rubles and foreign currency, securities, precious metals, precious stones and other financial assets.
• 2. Non-property:
  • – organizational – develop in the process state registration credit organization, licensing banking activities, building and ensuring the proper functioning of the banking system and are not related to the implementation of banking operations and transactions;
  • - functional - they develop in the process of carrying out banking operations and transactions, but their object is not financial instruments, but non-property benefits: business reputation, the obligation to maintain bank secrecy, etc.

Depending on the subject composition, banking legal relations can be divided into intra-system and external.

• 1. Intra-system legal relations develop between the subjects of the banking system - the Bank of Russia, the DIA, the Development Bank, credit institutions, their associations and unions, as well as branches and representative offices of foreign banks. They may be:
  • – vertical – relations between the Central Bank of the Russian Federation and the DIA, on the one hand, and other entities, on the other, which are related to the performance of public legal functions;
  • – horizontal – relations between all of these entities that develop in the process of banking operations (for example, correspondent relations between two credit institutions, relations for the provision of interbank loans, settlements, etc.)
• 2. Externally directed – relations between the Bank of Russia and the highest government bodies (President of the Russian Federation, State Duma, Government of the Russian Federation), between the Bank of Russia and international financial institutions, as well as between credit institutions, on the one hand, and their clients and credit history bureaus, on the other.

In the legal literature, another classification of banking legal relations has been proposed - depending on whether the status of a credit organization or its functions is realized in such legal relations. According to this criterion, the following legal relations are distinguished:

• 1. Status banking legal relationship is a legal relationship between a credit organization and the Bank of Russia, arising from the moment of its registration and terminated by the latter’s exclusion from the Book of State Registration of Credit Institutions. During these intervals, changes occur in the specified legal relationship related to obtaining banking licenses, making changes to the constituent documents, agreeing with the Central Bank of the Russian Federation on candidates for appointment to the positions of manager and chief accountant of a credit organization, its reorganization, etc.
• 2. Operational banking legal relationship – a legal relationship between the Central Bank of the Russian Federation and a credit institution regarding the credit institution’s compliance with the established procedure for conducting banking operations and transactions.

• Oleinik, O. M. Fundamentals of banking law. P. 39.
• Tedeev, A. A. Banking law: textbook / A. A. Tedeev. M.: Eksmo, 2005.
• Banking law: textbook / V. S. Belykh [etc.]; edited by V. S. Belykh. M.: Prospekt, 2011. P. 36.
• Bratko, A. G. Banking law of Russia. pp. 143, 144.

The transition to a market economy in Russia has radically changed the nature of relations in the field of bank lending.

Under the administrative-command system, there was a state monopoly on banking. The emerging relationships in the banking system were regulated by the norms of administrative and financial law. The formation of the market and the abandonment of the state monopoly in the banking sector led to fundamental changes in the legal regulation of these relations, most of which develop between non-state, commercial credit organizations, banks and their clients (organizations, individuals) and are regulated mainly by civil law.

In this regard, the scope and boundaries of regulation of the banking system have changed significantly. Having abandoned the state monopoly on banking, our state, like other states with a market economy, influences the banking system, including through law, and implements the control function.

These powers are vested in the Central Bank of the Russian Federation, which implements them through administrative and financial law. The banking system is essentially an object of financial and legal regulation, which is due to the presence of specific social relations that arise in the process financial activities state and municipalities in order to ensure public interests, as well as the tasks and functions of the state.

Social relations arising in the process of interaction of banking system institutions with each other, with authorized government agencies, as well as with their clients, are regulated, as noted earlier, by the norms of various branches of law.

Financial law regulates the following social relations that develop during the functioning of the banking system.

Firstly, these are the relations between authorized government bodies and the banking system as a whole or its individual institutions. They arise between representative and executive authorities and the Central Bank of the Russian Federation to determine its status and relationships with these government bodies. These are, in particular, the relations: on the implementation by the Bank of Russia together with the government of the country (the Ministry of Finance of the Russian Federation) of a unified monetary policy; service government debt; interactions with the budget and extra-budgetary funds, including transferring part of their profits to federal budget. These relations are regulated, for example, by the norms contained in the relevant articles of the Law on the Bank of Russia, as well as in the articles of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation). This group also includes the relations of credit institutions (authorized banks) with the Federal Treasury for servicing budget funds.

Secondly, this is a relationship in which the Bank of Russia, in interactions with credit institutions, acts as a state organization. Credit institutions carry out various banking operations, thereby accumulating significant cash their clients and forming decentralized funds of money. Raised funds are placed on its own behalf and at its own expense on the terms of repayment, payment and urgency among the population, organizations, as well as government agencies, providing the necessary additional resources to satisfy not only private, but also state and public needs. Thus, various cash flows pass through the accounts of credit institutions and banks, becoming involved in monetary circulation, in the stable functioning of which the state is interested.

Financial relations also develop between the Bank of Russia and credit institutions in connection with their registration, licensing, establishment of economic standards for their activities, as well as in the process of banking supervision.

Thirdly, these are some relations between credit institutions and serviced organizations and individuals, including relationships regulated by the norms contained in the Law on the Bank of Russia, the Law on Banks, the Law on Currency Regulation, according to which credit organizations perform the functions of foreign exchange agents control, and the Bank of Russia is the currency control body. Thus, credit institutions participate in the formation of foreign exchange reserves of the Central Bank of the Russian Federation.

In relations with clients, credit organizations are also empowered to establish, in particular, standards within which organizations can keep certain amounts of cash in their cash desks.

Fourthly, an important aspect of the bank’s relationship with clients in any country is legal regulation banking secrecy. So, in accordance with Art. 26 of the Law on Banks, credit institutions and the Bank of Russia guarantee secrecy about transactions, accounts and deposits of their clients and correspondents. All employees of a credit institution are required to keep secret the transactions, accounts and deposits of its clients and correspondents, as well as other information established by the credit institution, unless this contradicts federal law.

Fifthly, relations regulated by financial law include relations that develop during the formation and functioning of the deposit insurance system. These relations are of a public nature, since the creation of this system is aimed at ensuring the protection of not only bank depositors, but also the entire banking system, which is discussed in more detail in Chapter. 6 of this textbook.

Among the above-mentioned relations regulated by financial law, the most significant are the relations between the Bank of Russia, which represents the interests of the state and society in the implementation of monetary policy, and other institutions of the banking system.

As noted earlier, in the process of banking activities, social relations arise that are regulated by the norms of not only financial, but also other branches of law - civil, administrative, which are contained in banking legislation. Consequently, all relations arising in the banking sector, regulated by the norms of banking legislation, can be called banking legal relations.

The specificity of banking legal relations is manifested in their structure. A distinctive feature of a banking legal relationship is its special subject composition.

There is a point of view in the literature according to which banking legal relations include only those in which the Bank of Russia is one of the subjects. According to A.G. Bratko, banking legal relations are only vertical legal relations. The relationship of the bank with the client remains outside the scope of banking legal relations, since in banking law only the method of authoritative order is used, and the norms of banking law are imperative and do not provide for equality of parties. This affects the subject composition of banking legal relations. The bank’s relations with the client, shareholder and depositor are regulated, according to A.G. Bratko, by civil law.

A different position is taken by G. A. Tosunyan, A. Yu. Vikulin, A. M. Ek-malyan. They believe that banking legal relations are legal relations in which one of the parties is a credit institution or the Bank of Russia, and the Bank of Russia will be a party to the banking legal relationship only when it carries out banking operations in accordance with the law, i.e. acts as an economic entity.

O. M. Oleinik, understanding banking legal relations as “social relations regulated by private and public norms of law that develop in the course of the activities of banks and other credit organizations that realize their specific legal status and use money and other financial means as means of circulation, savings and as goods ", identifies the "client" of banks - citizens, legal entities, their separate divisions, other organizations - as possible subjects of banking legal relations.

Based on the fact that banking law is a set of rules governing relations in the field of banking, any person who is not prohibited by law can implement these rules. The exclusion of individuals from the circle of subjects of banking law will make it impossible to classify as banking relations that arise, for example, in the system of insurance of deposits of individuals in Russian banks. Meanwhile, this institution is aimed at protecting precisely this category of bank clients. The procedure for interaction between the bank and the client in matters of concluding a bank deposit agreement and opening a deposit subject to insurance, as well as the procedure for paying compensation for deposits, are not fully regulated by civil law. IN in this case the bank is perceived as a subject of public legal relations, an element of the banking system. Therefore, the rules governing the deposit insurance system relate to banking legislation and, therefore, the relations that arise in the process of implementing these rules are a type of banking legal relationship.

The Bank of Russia occupies a special position in banking legal relations. Firstly, he is vested with the right to carry out banking operations, in particular to carry out credit operations with credit organizations, and, therefore, cannot be excluded from the list of subjects of banking legal relations. Secondly, on issues within its competence, the Bank of Russia has the right to issue normative acts in the form of directives, regulations and instructions that are binding on federal government bodies, government bodies of constituent entities of the Russian Federation and local governments, all legal entities and individuals. Thirdly, the Bank of Russia has the right to carry out inspections of credit institutions and apply sanctions against credit institutions for violations identified in their activities, thus exercising its power functions. Certain types of legal relations between the Bank of Russia and credit organizations arise from the moment of registration of the credit organization and last until the moment it ceases to exist, i.e., liquidation. These relationships are of the nature of power and subordination and are implemented during scheduled and unscheduled inspections conducted by the Bank of Russia; when applying enforcement measures in the form of a fine, a ban on certain banking transactions, etc.; revocation of license; etc. Relations arising in connection with the implementation of debit transactions on a correspondent account of a credit organization opened with the Bank of Russia, relations arising in connection with the provision by the Bank of Russia of a loan to a credit organization are regulated by an agreement concluded by the credit organization and the Bank of Russia.

Thus, banking legal relations are relations regulated by the norms of banking law, one party of which may be legal or individual, and the other party is always either a credit organization (bank or non-bank credit organization) or the Bank of Russia.

The object of the banking legal relationship is banking activity, the content of which is operations and transactions.

The basis for the emergence of a banking legal relationship can be the norms of banking legislation, as well as such legal facts as an administrative act, an agreement.

Banking legal relations are understood as relations regulated by the norms of banking law that arise in connection with or in the process of carrying out banking activities by credit institutions.

Types of banking legal relations can be classified on various grounds.

Depending on the subject composition this could be a legal relationship:

• - between the bank and the client;
• - between two banks;
• - between the Central Bank of the Russian Federation and credit organizations;
• - between the Central Bank of the Russian Federation and the Government of the Russian Federation and other authorities;
• - between banks regarding the creation of unions, associations, etc.

Depending on the nature of banking operations these could be:

• - passive legal relations in which the bank acts as a debtor (bank deposit, bank account);
• - active legal relations in which the bank participates as a creditor (loan agreement);
• - intermediary legal relations arising during non-cash payments.

According to three main functions inherent in any bank, we can distinguish banking legal relations aimed at:

• - to accumulate funds;
• - placement of raised funds;
• - assistance in payment transactions.

There are other possible grounds for classifying banking legal relations.

• Modern problems A number of previously mentioned fundamental studies are devoted to the development of the banking system and banking law. The following works are also devoted to various aspects of legal regulation of the banking system: Harutyunyan T. R. Improving the legal regulation of banks and banking activities in the Russian Federation: abstract of thesis. dis. ...cand. econ. Sci. M., 1997; Popov V.V. Banks as subjects of tax law: abstract. dis.... cand. legal Sci. Saratov, 1998; Bobrova O. V. Legal basis State regulation of bank lending: abstract. dis.... cand. econ. Sci. Saratov, 2000.
Cm.: Alekseeva D. G., Khomenko E. G. Banking law: questions and answers. M., 2003. S. 12, 13.
• Cm.: Oleinik O. M. Decree. op. P. 39.

In the process of carrying out banking activities, social relations arise that are regulated by the norms of banking legislation - banking legal relations.

The specificity of banking legal relations is manifested in their structure.

A distinctive feature of a banking legal relationship is special subject composition.

There is a point of view in the literature according to which banking legal relations include only those in which the Bank of Russia is one of the subjects. According to A.G. Bratko, banking legal relations are only vertical legal relations. The relationship of the bank with the client remains outside the scope of banking legal relations, since banking law only uses the method of authoritative order, and the norms of banking law are imperative and do not provide for equality of parties. This affects the subject composition of banking legal relations. The bank’s relations with the client, shareholder and depositor are regulated, according to A.G. Bratko, by civil law.

A different position is taken by G. A. Tosunyan, A. Yu. Vikulin, A. M. Ekmalyan. They believe that banking legal relations are legal relations in which one of the parties is a credit institution or the Bank of Russia. Moreover, the Bank of Russia will act as a party to the banking legal relationship only when it carries out banking operations in accordance with the law, that is, acts as an economic entity 1. The relations of banks with their clients are, according to G. Tosunyan, an area of ​​civil regulation, interference in which is contrary to the interests of both clients and the banks themselves.

O. M. Oleinik, understanding banking legal relations as “social relations regulated by private and public norms of law that develop in the course of the activities of banks and other credit organizations that realize their specific legal status and use money and other financial means as means of circulation, savings and as goods ", identifies the "client" of banks - citizens, legal entities, their separate divisions, other organizations - as possible subjects of banking legal relations.

Based on the fact that banking law is a set of rules governing relations in the field of banking, any person who is not prohibited by law can implement these rules. The exclusion of individuals from the circle of subjects of banking law will make it impossible to classify as banking relations that arise, for example, in the system of insurance of deposits of individuals in banks of the Russian Federation. But this institute is aimed at protecting precisely this category of bank clients. The procedure for interaction between the bank and the client in matters of concluding a bank deposit agreement and opening a deposit subject to insurance, as well as the procedure for paying compensation for deposits, are not fully regulated by civil law. In this case, the bank is perceived as a subject of public legal relations, an element of the banking system. Therefore, the rules governing the deposit insurance system relate to banking legislation, and, therefore, the relations that arise in the process of implementing these rules are a type of banking legal relationship.

The Bank of Russia occupies a special position in banking legal relations. Firstly, he is vested with the right to carry out banking operations, in particular to carry out credit operations with credit organizations, and, therefore, cannot be excluded from the list of subjects of banking legal relations. Secondly, on issues within its competence, the Bank of Russia is vested with the right to issue normative acts in the form of directives, regulations and instructions that are binding on federal government bodies, government bodies of the constituent entities of the Federation and local governments, all legal entities and individuals. Thirdly, the Bank of Russia has the right to carry out inspections of credit institutions and apply sanctions against credit institutions for violations identified in their activities, thus exercising its power functions. Certain types of legal relations between the Bank of Russia and credit organizations arise from the moment of registration of the credit organization and last until the moment it ceases to exist, that is, liquidation. These relationships are of the nature of power and subordination and are implemented during scheduled and unscheduled inspections conducted by the Bank of Russia; application of sanctions in the form of a fine, a ban on certain banking transactions, etc.; revocation of a license, etc. Relations arising in connection with the implementation of debit transactions on a correspondent account of a credit organization opened with the Bank of Russia; relations arising in connection with the provision of a loan by the Bank of Russia to a credit organization arise on the basis of an agreement concluded by the credit organization and the Bank of Russia.

Thus, banking legal relations are relations regulated by the norms of banking law, one party of which can be a legal entity or an individual, and the other party is always either a credit organization (bank or non-bank credit organization) or the Bank of Russia.

Object banking legal relationship is banking activity, the content of which is operations and transactions.

The basis for the occurrence banking legal relationship may be the norms of banking legislation, as well as such legal facts as an administrative act, an agreement.

Types of banking legal relations can be classified on various grounds.

Depending on subject composition this could be a legal relationship:

• - between the bank and the client;
• - between two banks;
• - between the Central Bank of the Russian Federation and banks;
• - between the Central Bank of the Russian Federation and the government and other authorities;
• - between banks regarding the creation of unions, associations, etc. 1

Depending on nature of banking operations these may be.