Banking legal relations are understood to be relations regulated by the norms of banking law that arise in the process of carrying out banking activities by credit institutions, in which the subjects are interconnected by mutual rights and obligations.
A mandatory feature of a banking legal relationship is the presence of a special subject:
- a banking credit organization (commercial bank);
- non-bank credit institution;
- The Bank of Russia, which is at the same time a subject of regulation, since it issues mandatory normative acts, and an object of regulation, since it must also obey these acts.
The object of the banking legal relationship is banking, the content of which is operations and transactions.
Grounds for the emergence of a banking legal relationship:
- norms of the law;
- administrative act;
- agreement or unilateral transaction;
- causing harm.
Banking legal relationships have the following specific features:
1) the presence of a special entity in the form of a bank or other credit institution;
2) the presence of a special object;
3) mediation through banking legal relations monetary policy the state, which means the lack 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 relationships:
1) depending on the subject composition, it can be a legal relationship between:
- by the bank and the client;
- two or more commercial banks;
- the 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 institution and its internal structural units, as well as with separate structural divisions;
2) depending on the nature banking operations define:
- passive legal relationship in which the bank acts as a debtor, for example Bank deposit or bank account;
- active legal relationship - when the bank acts as a creditor, for example loan agreement;
- intermediary legal relations - when a bank takes part as an intermediary in non-cash settlements between various economic agents - individuals and legal entities, firms, the state, other banks;
3) in accordance with the main functions inherent in any bank, banking legal relations can be distinguished:
- accumulation of funds, that is, passive legal relationships;
- provision of loans, i.e. active legal relations;
- assistance in payment turnover - intermediary;
- property legal relations associated with in cash as with a special type of property;
- non-property legal relations associated with ensuring bank secrecy, protecting the business reputation of the bank, using various names, etc .;
- organizational legal relations associated with the construction of the internal structure of both the bank itself and the banking system as a whole.
More on topic 2. Concept, signs and types of banking legal relations:
- § 2.1. The ratio of the concepts of "mutual investment fund" and "property complex"
- § 2. Characteristics of the subject composition of legal relations developing between the economic society and its participants, the legal facts underlying their emergence.
The bank is essential element financial system in any state. IN Russian Federation banking legal relations are regulated by a variety of regulations. How exactly banks function in our state will be described in this article.
general characteristics
The functions of the system of banking legal relations include regulation of the work of the Central Bank and commercial financial institutions. According to the conclusion of lawyers, banking law consists of civil and financial law... Civil norms establish the procedure for the establishment of banks and their activities. Financial legal norms form the principles of lending, determine the status of the Russian Central Bank and regulate its relations with commercial banks.
The entire banking system has a tremendous impact on state economy... Science has developed a special classification that allows you to divide banking law into three levels. It is worth highlighting the sub-sectors (for example, currency law), legal institutions (the institution of cash or non-cash payments), as well as the rule of law. The totality of individual norms forms a specific institution of banking law. Compliance with the rules is ensured by the right to impose sanctions.
System of banking legal relations
What legal sources are the basis for the system in question? These are the Constitution, the Federal Law "On the Central Bank of the Russian Federation", the Federal Law "On Banking Activity", as well as the Law "On Bankruptcy". Contains some provisions on banks and the Civil Code.
The very system of banking law in Russia has a two-tier character. The first place is occupied by the Russian Central Bank. All the remaining subjects of banking legal relations are located at the second stage. These are different credit institutions- like commercial banks and private non-banking institutions. The state builds a governing system from bodies corresponding in terms of competence. Clear requirements are established for the implementation of banking activities.
Control
How exactly is the banking system in Russia managed? According to the basic law of the country, the head of state plays an important role in governance. It is he who manages issues of a financial, credit and economic nature. President ensures consistent work government agencies presenting candidates for various positions to the State Duma and the Federation Council. In particular, it is worth highlighting the positions of the chairman and board of directors of the Central Bank, as well as the head of the Accounts Chamber.
The Central Bank itself is subordinate to the State Duma. The lower house of Parliament has the following powers in relation to the banking system:
- appointment to the post of the head of the Bank of Russia;
- sending and recalling their representatives from the National Banking Council;
- consideration of the annual report of the Bank of Russia;
- holding parliamentary hearings on the activities of the Central Bank, and more.
The Federation Council, in turn, is obliged to send two of its representatives to the National Banking Council.
Banking and civil law
What is regulated by the rules of civil law? It is worth highlighting here the definition legal status participants in the civil system, grounds for the formation of property and non-property rights, regulation of contractual obligations and much more. All these elements are present in banking law. In fact, the banking system is closely related to civil law. In this case, it would be a mistake to consider the species in question to be completely dependent on civil law. 
What are the differences between the two legal systems presented? First, banking legal relations do not imply broad autonomy of the will of the parties. Most of the rules in the system of credit institutions are mandatory. Secondly, for violation of the rules of law, credit organizations are involved in accordance with the rules of banking, and not civil law. A simple example: Article 836 of the Civil Code of the Russian Federation speaks of the conclusion bank agreement in writing. At the same time, the Code does not specify whether an offer or an acceptance will be sufficient grounds. At the same time, Article 36 of the Law "On Banking Activity" states that it is mandatory to conclude an agreement in case of raising funds in deposits.
Banking and finance law
The formation, distribution and use of funds are regulated by the rules of financial law. The subject of this legal area is the relationship that may arise in the process financial activities federations and regional entities. 
What are the related rules between financial and banking law? Here it is worth mentioning the relationship between the Central Bank and the credit authorities on the formation and use of mandatory cash reserves. It is necessary to clearly distinguish between when the Bank of Russia interacts with credit institutions, and when it itself takes part in financial relations... In the first case, we are talking about the related application of banking and financial law, and in the second - about a specific rule of financial law.
Bank holding
In banking legal relations, two types of associations play an important role: a group and a holding. According to Article 4 of the Federal Law "On Banks", a group of credit organizations is an association of legal entities, which, at the same time, is not credit person... Such an association is managed by one credit institution.
In the case of the holding, everything is somewhat different. We are talking about the same merger as in the case of the group, only the manager here is an organization that does not have the status of a bank. The share of banking activities in the holding should not be less than 40 percent. Control over both the banking group and the holding is established International standards monetary reporting. 
There are other forms of banking legal relationships. So, you need to highlight unions and associations. They are created not for profit, but for joint support - legal and financial.
Bank operations
The main types of banking legal relationships are enshrined in Article 5 of the Federal Law "On Banks". It is in this part of the law that it tells about banking operations and transactions. The main operation is to attract finance to deposits. Both physical and legal entities... Next, you should highlight the formation and maintenance bank accounts, as well as the implementation of transfers (including electronic - without opening bank accounts). Cash collection activity is closely connected with these operations. 
The very concept of banking legal relations might not exist if it were not for the possibility of issuing bank guarantees... Providing such guarantees is the most important responsibility of the representatives of the banking system.
What transactions can a credit institution carry out? Here's what to look out for:
- issuance of guarantees for third parties;
- acquisition of the right to claim finance from third parties;
- trust management;
- implementation of leasing operations;
- provision of advisory services to all participants in banking legal relations.
Ensuring stability
Financial reliability is the basic principle on which any credit institution is based. To ensure reliability, the parent organizations of banking groups are required to form special reserves for the storage of securities and finances. The formation procedure and minimum reserves are established by the Central Bank. 
To ensure stability, a credit institution must create a risk and capital management system - one of the most important guarantees of reliability. A well-developed system will allow the bank to function optimally for a long time.
Bank deposits
The main feature of banking legal relations is the ability to make deposits. What it is? According to Article 36 of the Federal Law "On Banks", a deposit is money in the Russian or foreign currency placed by an individual in order to store and receive financial benefits in the future. Income is generated in the form of interest and is paid in cash. Finances can be returned to the depositor at his first request. 
Not everyone is able to accept deposits. First, the size authorized capital should be at least 3.6 billion rubles. Secondly, information about the authorities controlling the bank should be disclosed to an unlimited number of persons. The presence of the two presented conditions will allow any bank to implement not only the activity of issuing loans, but also the functions of accepting deposits.
In the theory of law, a legal relationship is understood as a public relationship regulated by the norms of a particular branch of law, the participants of which have certain rights and obligations. Through the norms of law, the actual relationship between two or more subjects acquires the character of a legal connection, is clothed in a legal form. Legal relationship - a conscious-volitional relationship; arises on the basis of the rules of law and is a correspondence of the subjective rights and obligations of its participants.
Banking legal relationship is a public relationship, regulated by the norms of banking law, which develops in connection with banking activities. A more detailed definition was formulated by O.M. Oleinik: banking legal relations are public relations regulated by private and public norms of law that develop in the course of the activities of banks and other credit organizations that implement a specific legal status and use money and other financial instruments as a medium of exchange, savings and as a commodity *.
* Cm.: Oleinik O.M. Fundamentals of Banking Law: A course of lectures. M, 1997.S. 39.
Banking legal relationship is the legal form of the actual banking relationship. Banking legal relations include only what is legal. There should not be any extra-legal (factual) elements in the content of the legal relationship itself. The main content of the banking legal relationship is the rights and obligations of its subjects arising from the observance, execution, use and application of the established by laws and regulations Bank of Russia procedure for conducting banking operations and transactions *.
* Cm.: Brother A.G. Banking law of Russia: Tutorial... M., 2003.S. 141.
There are two characteristics banking legal relations, distinguishing them from legal relations in other branches of law. The first feature of the 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. A direct connection will be when the banking legal relationship develops in the process of banking as a type of entrepreneurial activity. In this case, the banking legal relationship is property character and is associated with money as a type of property. Such a relationship has a non-property nature if its object is, for example, the business reputation of a credit institution, bank secrecy as a specific type of information, etc. An indirect connection with banking is manifested in organizational relationships, which are a necessary prerequisite for banking operations and transactions. These are relations on creating a credit institution, building a banking system, exercising banking supervision, etc.
On the basis of this division, it is possible to build the first classification of banking legal relations based on their functional focus:
1) property - related to funds in rubles and foreign currency, securities, precious metals, precious stones and other financial assets;
2) non-property:
organizational - add up in the process state registration a credit institution, 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 - formed in the course of banking operations and transactions, but their object is not financial instruments, but non-property benefits: business reputation, the obligation to keep bank secrets, etc.
Depending on the subject composition, banking legal relations can be subdivided into intra-system and external:
1) intrasystem legal relations are formed between the subjects of the banking system - the Bank of Russia, ARCO, 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 ARCO, on the one hand, and other subjects, on the other, - which are associated with the performance of public law functions;
horizontal - the relationship between all the above entities, developing in the process of banking operations and transactions (for example, correspondent relations between two credit institutions, relations for the provision of interbank loans, etc.);
2) externally directed - relations between the Bank of Russia and the highest bodies of state power (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 and their clients.
In the legal literature, another classification of banking legal relations is proposed - depending on whether the status of a credit organization or its functions are implemented in such legal relations *.
* Cm.: Brother A.G. Banking law of Russia. S. 143 - 144.
According to the named criterion, the following are distinguished:
1) status banking legal relationship - a legal relationship between a credit institution and the Bank of Russia, arising from the moment of its registration and terminating by the exclusion of the latter from the Book of State Registration of Credit Institutions. In these intervals, there are changes in the specified legal relationship associated with obtaining banking licenses, amendments to the constituent documents, coordination with the Central Bank of the Russian Federation of candidates for appointment to the positions of head and chief accountant of a credit institution, its reorganization, etc .;
2) operational banking legal relationship - a legal relationship between the Central Bank of the Russian Federation and a credit institution regarding compliance by a credit institution established order conducting banking operations and transactions.
The transition to a market economy in Russia has radically changed the nature of relations in the field of bank lending.
Under the conditions of the administrative-command system, there was a state monopoly on banking. The emerging relationship in banking system were regulated by the norms of administrative and financial law.
Having renounced the state monopoly on banking, our state, like other states with market economy, influences the banking system, including with the help of law, and implements the control function. These powers are vested in central bank RF, which implements them using the norms of administrative and financial law.
- these 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 institution (bank or non-bank credit institution) or the Bank of Russia.
Object banking legal relationship is banking, the content of which are operations and transactions.
The basis for the emergence of a banking legal relationship can be norms, as well as such legal facts as an administrative act, an agreement.
Types of banking legal relationships
Banking legal relations are understood to be 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 relationships can be classified for various reasons.
Depending on the subject composition, these can be legal relations:
- between a bank and a 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 of the Russian Federation and other authorities,
- between banks on the creation of unions, associations, etc.
Depending on the nature of banking operations, these can be:
- passive legal relationship in which the bank acts as a debtor (bank deposit, bank account);
- active legal relationship in which the bank participates as a creditor (loan agreement);
- intermediary legal relations arising from non-cash payments.
In accordance with the three main functions inherent in any bank, banking legal relations can be distinguished, aimed at:
- to accumulate funds;
- for the placement of attracted funds;
- to facilitate the payment turnover.
Other grounds for the classification of banking legal relations are also possible.
Features of banking legal relations
There are two characteristic features of banking legal relations that distinguish them from legal relations in other branches of law. The first feature of the 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. Direct communication will be when the banking legal relationship develops in the process of banking as a type of entrepreneurial activity. In this case, the banking legal relationship is of a property nature and is associated with money as a type of property. Such a legal relationship is non-property in nature if its object is, for example, the business reputation of a credit institution, banking secrecy as a specific type of information, etc. An indirect connection with banking is manifested in organizational relationships, which are a necessary prerequisite for banking operations and transactions. These are relations for creating a credit institution, building a banking system, exercising banking supervision, etc.
On the basis of this division, it is possible to build the first classification of banking legal relations based on their functional focus:
Property- associated with cash in rubles and foreign currency, securities, precious metals, precious stones and other financial assets;
Non-property:
- organizational - formed in the process of state registration of a credit institution, licensing of banking activities, building and ensuring the proper functioning of the banking system and the deposit insurance system and are not associated with the implementation of banking operations and transactions;
- functional - are formed in the process of banking operations and transactions, but their object is not financial instruments, but non-property benefits: business reputation, bank secrecy, etc.
Depending on the subject composition, banking legal relations can be subdivided into intrasystem and externally directed ones:
- intrasystem legal relations are formed 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 associated with the performance of public law functions;
- horizontal - relations between all the specified entities in the process of banking operations and transactions (for example, correspondent relations between two credit institutions, relations on the provision of interbank loans, settlements, etc.);
- externally directed - relations between the Bank of Russia and the highest state authorities (the President of the Russian Federation, the State Duma, the Government of the Russian Federation), between the Bank of Russia and international financial organizations, as well as between credit institutions and their clients, the Central Catalog credit histories and credit bureaus.
Banking Law Study Subject- banking legal relations.
Banking legal relations- these are social relations regulated by the norms of banking law that develop in the course of the activities of banks and non-bank credit organizations.
Banking legal relationships have several characteristics:
1) these are social relations, that is, the relationship between legal and individuals of public importance;
2) it is monetary in its own way economic essence relations consisting in the redistribution of funds between sectors of the economy and regions of the country, effective provision of settlements;
3) banking legal relationship, which is a legal connection of the subjects of such legal relationship through subjective rights and legal obligations.
a) property related to money as a type of property;
b) non-property related to the provision of bank secrecy, the use of certain names, etc.;
c) organizational, associated with the construction of internal organizational structure the bank itself and the banking system as a whole.
The structure of banking legal relations - this is the internal structure and interconnection of the elements of a legal relationship, it is constituted by the subjects (participants) and the content of the legal relationship.
Banking legal relations have a special circle subjects. The subjects are the Russian Federation and the subjects of the Russian Federation, administrative-territorial formations, government bodies and their officials, legal entities, credit organizations and their associations, the Central Bank of the Russian Federation, foreign banks and their representative offices on the territory of the Russian Federation.
The object of the banking legal relationship - something about which the subjects of legal relations enter into a legal relationship. The objects of legal relations are a variety of material and intangible benefits.
8. Banking supervision and its types
Banking Regulatory and Supervisory Authority in accordance with the Federal Law "On The central bank Of the Russian Federation "is Bank of Russia. The Bank of Russia constantly supervises compliance by credit institutions and banking groups with banking laws and regulations of the Bank of Russia, the mandatory ratios established by them. Banking system Is an object of supervision for the Bank of Russia. Supervision Is a means of enforcing prudential regulation. This is supervision in the narrow sense of the word, that is, supervision of individual credit institutions as part of the banking system.Each individual credit institution is subject to specific supervision by the Central Bank of the Russian Federation. Strengthening supervision over a specific credit institution may be dictated by the general interests of strengthening the banking system, in particular, managing systemic risks. However, there is a downside to this: a credit institution is losing its advantages in the system of competitive relations. Information that a particular credit institution is subject to intense supervision may raise doubts among its clients.
Banking supervision type- this is the specific activity of the Bank of Russia to check the activities of a credit institution, conditioned by the object and subject of banking supervision.
Banking supervision can be classified according to several criteria.
1. General classification of banking supervision. Depending on the subject of supervision, it is necessary to highlight functional types of supervision, and depending on the subject - institutional.
2. Subject classification of banking supervision (functional). Banking supervision is classified according to specific regulatory, economic and financial content banking activities that are subject to supervision.
3. Regulatory classification of banking supervision. There are two types: general(legal) and prudential(financial).
4. Depending on the development of the banking activity of the credit institution, it is necessary to distinguish between the types of banking supervision:
1) banking licensing;
2) ongoing supervision compliance with laws, financial standards and regulations of the Bank of Russia.
5. Depending on the economic and financial content of banking activities, a distinction is made between foreign exchange supervision and supervision related to the servicing of budget accounts by banks.
6. Depending on the location of the supervision, current control is divided into two types: remote and contact.
Remote supervision - This is the observation of the activities of credit institutions on the basis of the banking and, in particular, accounting documents submitted by it.
Contact supervision- these are inspections of the activities of credit institutions, carried out by representatives of the Bank of Russia directly in the credit institution. For these purposes, special subdivisions are being created in the structure of the Bank of Russia - the Credit Institutions Inspection Department and the corresponding structures in its territorial offices.
Practical task:
1. What is meant by banking?
2. How is the complexity of the branch of banking law manifested?
3. What methods legal regulation are inherent in banking legislation?
4. What is the subject of banking regulation?
5. What definitions of banking legal relationship are found in the legal literature?
6. What is meant by the legal regime of banking?
7. What are the grounds for the emergence, change and termination of banking legal relations?
8. What is meant by banking rules and customs?
9. What acts of the Bank of Russia are not normative?
10. What is the role of general and special laws in the mechanism of legal regulation of banking activities?
11. Select and write down 3 examples of sources of banking law of the following forms: code, law, decree, decree, instruction, rules. Indicate which bodies are competent to adopt the specified acts in the named forms.
12. What are the main international acts regulating banking activities, and describe the procedure for their application.
13. Expand the content of the concepts of "banking law" and "banking legislation".
Lecture 2 The concept of the banking system. Subjects of banking legislation.
1. The concept, essence and structure of the banking system of the Russian Federation
2. Legal status and the main features of credit institutions
3. Creation of a credit institution
4. Non-bank credit institutions in the banking system of the Russian Federation
5. Legal status of the Central Bank of the Russian Federation
6. Branches and representative offices of a credit institution
7. Banking unions, holdings and associations
8. Foreign banks, their branches and representative offices
9. Territorial offices and cash settlement centers of the Central Bank of the Russian Federation
