Obligations from bank account and bank deposit agreements. Obligations from bank account and bank deposit agreements Types and types of bank deposits
54. Bank deposit agreement. Elements of the contract. Investor rights. Responsibilities of the parties Elements:
Parties - credit institution (banks and non-bank credit institutions) and depositor (citizen and legal entity). Citizens acquire the right to independently make deposits in credit institutions and dispose of them from the age of 14. Subject is the only essential condition- amount of money. By transferring the amount of money to the deposit, the depositor transfers the ownership of it to the credit institution, and in return receives the obligation right to claim under the agreement.
Form- written. The written form of the bank deposit agreement is considered to be complied with if the deposit is certified savings book, a savings or deposit certificate or other document issued by the bank to the depositor that meets the requirements provided for such documents by the law, the banking rules established in accordance therewith and the customs of business used in banking practice.
Failure to comply with the written form of the bank deposit agreement entails the invalidity of this agreement. Such an agreement is null and void.
Since the bank deposit agreement is unilateral, the obligations under it lie only on one side - the credit institution, the depositor has only their corresponding rights:- right demand a return deposit upon the maturity or condition established by the agreement (a citizen investor can receive a deposit on demand, the statute of limitations does not apply to this requirement)
Require at the end of each quarter interest payments(the contract may specify a different frequency of payments)
Responsibility: see question 53
53. Bank deposit agreement: responsibility of the parties. The ratio of the rules on the bank deposit agreement with the rules on the bank account agreement. Due to the fact that the rules on the bank account agreement (clause 3 of article 834 of the Civil Code) apply to the relationship between the bank and the depositor on the account to which the deposit was made, whenviolationsthe bank of its obligations todepositoron opening and maintaining a deposit account the norm on responsibilitybank for improper performance of transactions on the account contained in Art. 856 CC. According to the specified norm in cases of untimely crediting of funds received to the client or their unjustified 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 the bank is obliged pay interest on this amount(for the use of other people's funds) in the manner and in the amount provided for in Art. 395 Civil Code. Responsibility of the bank under the bank deposit agreementoccurs in the following cases:
a) for non-fulfillment of obligations stipulated by law or contract to ensure the return of the deposit;
b) in case of loss of security or deterioration of its conditions;
c) for accepting a deposit from citizens by an unauthorized person or in violation of the legislation on deposits;
d) for non-return of a deposit or non-payment of interest on it, or delay in performing these actions.
In all these cases the depositor has the right to demand from his counterparty immediate refundcontribution. In the first and second cases the property liability of the bank consists in the obligation to pay the depositor bank rate forfeit(in judicial practice, this is the refinancing rate of the Central Bank of the Russian Federation, calculated on the day the debt is repaid), as well as recover damages in part, notcovered by a forfeit(Clause 4 of Article 840 of the Civil Code of the Russian Federation). In the third case when a contribution is accepted from a citizen by a person who is not entitled to make banking(i.e. E. In the absence of a license for the right to exercise banking operations), civil liability is stricter: the person who accepted the deposit is obligedpay interest on the amount of the deposit in the amount of the raterefinancing, and in addition to reimburse the depositor-all damages caused to the citizen. If the depositor -legal entity, then the deposit agreement isinvalid(clause 2 of article 835 of the Civil Code of the Russian Federation), and the bank is obligedreturn the amount of the deposit with the interest accrued on it inrefinancing rate(Art. 1103, p. 2, Art. 1107 Civil Code
rf). And finally, the most common case is a delay in the return of the deposit amount and (or) the payment of interest on it.
The ratio of the norms on the bank deposit agreement and the bank account agreement:
Bank account - form (technical regulation), bank deposit - content.
The dog-r of a bank deposit is unilaterally binding, the dog-r of a bank account is bilaterally binding.
Bank deposit agreement: deposit in statics, bank account agreement - in dynamics, you can use funds. Diagram from the lecture
An essential condition of the agreement is the subject, which is the bank's deposit services (type of deposit). The condition on the amount and procedure for payment of interest is not essential.
Unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the amount of the loan in the amount and in the manner determined by the agreement. In the absence of a clause on the amount of interest in the agreement, their amount is determined by the existing rate of bank refinancing.
By general rule, the bank is not entitled to unilaterally change the interest established by the contract. Unless otherwise provided by the bank deposit agreement, the bank has the right to change the amount of interest paid on demand deposits.
In case of a decrease in the amount of interest by the bank new size interest is applied after one month from the date of the corresponding message.
The amount of interest on a term deposit determined by the bank deposit agreement may not be unilaterally reduced by the bank, unless otherwise provided by law. Under an agreement for such a bank deposit concluded by a bank with a legal entity, the amount of interest cannot be unilaterally changed, unless otherwise provided by law or agreement (Article 838 of the Civil Code of the Russian Federation).
Interest on the amount of a bank deposit is calculated from the day following the day it was received by the bank until the day preceding its return to the depositor or its debiting from the depositor's account for other reasons.
Interest on the amount of the bank deposit is paid to the depositor at his request at the end of each quarter, separately from the amount of the deposit, and the interest unclaimed during this period increases the amount of the deposit on which interest is charged (Article 839 of the Civil Code of the Russian Federation).
The bank deposit agreement must be concluded in writing... Failure to comply with the written form of the bank deposit agreement entails the invalidity of this agreement. Such an agreement is null and void (Article 836 of the Civil Code of the Russian Federation).
The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book,
savings or deposit certificate, or other document issued by the bank to the depositor that meets certain requirements.
A savings book certifies the conclusion of a bank deposit agreement with a citizen and the payment of funds to his account on the deposit is certified.
The following types of savings books are distinguished: a personal savings book, a bearer savings book, which is a security (Article 843 of the Civil Code of the Russian Federation).
A savings (deposit) certificate is a security document certifying the amount of the deposit made to the bank and the rights of the depositor (certificate holder) to receive the deposit amount and the interest specified in the certificate at the bank that issued the certificate, or at any branch of this bank after the expiry of the specified period.
Savings (deposit) certificates, like savings books, can be: bearer, registered (Article 844 of the Civil Code of the Russian Federation).
The bank deposit agreement is real, since it is considered concluded from the moment the amount of money is deposited, compensated, unilateral.
The parties to the agreement are:
Bank is a credit institution that has the exclusive right to carry out, in aggregate, the following banking operations: legal entities, placement of these funds on its own behalf and at its own expense on terms of repayment, payment, urgency, opening and maintaining bank accounts of individuals and legal entities. Deposits are accepted only by banks that have this right in accordance with a license issued by the Bank of Russia participating in the system compulsory insurance deposits individuals in banks and registered with an organization performing the functions of compulsory deposit insurance. The right to attract deposits from individuals is granted to banks, from the date state registration which have passed at least two years8.
In order to prevent the implementation of banking operations by unauthorized organizations, Art. 835 of the Civil Code of the Russian Federation provides for adverse consequences for such organizations. In case of acceptance of a deposit from a citizen by a person who does not have the right to do so, the depositor may demand an immediate return of the deposit amount, as well as the payment of interest on it, and compensation in excess of the amount of interest of all losses caused to the depositor.
If such a person has accepted the funds of a legal entity on the terms of a bank deposit agreement, such an agreement is invalid.
Similar consequences apply in cases:
1) attracting funds from citizens and legal entities by selling them shares and other securities, the issue of which is recognized as illegal;
2) attracting funds from citizens in deposits against bills of exchange or other securities, excluding the receipt of their deposit holders on demand and the exercise of other rights by the depositor.
Citizens can act as contributors Russian Federation, foreign citizens and stateless persons. A bank deposit agreement, in which the depositor is a citizen, is recognized as a public agreement. The Civil Code of the Russian Federation does not restrict the rights of legal entities to conclude bank deposit agreements along with individuals. Legal entities are not entitled to transfer funds in deposits (deposits) to other persons.
The second party to the bank deposit agreement is the depositor. A depositor can be a citizen or a legal entity. Any citizen can be a depositor in the bank, regardless of the level of his legal capacity: fully capable, relatively capable, limited in legal capacity and completely incompetent by virtue of the law (children under 6 years of age), court decisions (mentally ill and mentally ill persons recognized as incompetent). Another thing is, which of the citizens has the right to conclude a bank deposit agreement by their actions? Not all citizens have this right, but only:
Fully capable: adults, that is, who have reached the age of 18; persons who entered into a registered marriage before reaching the age of 18, having received the proper permission; emancipated, that is, minors who have reached the age of 16, working under an employment contract or engaged in entrepreneurial activity recognized as fully capable by the decision of the guardianship and guardianship authority (with the consent of the parents, adoptive parents, guardian of the minor) or by the court (in the absence of such consent) (Article 27 of the Civil Code of the Russian Federation).
Relatively capable - minors aged 14 to 18 years. They have incomplete legal capacity, but they have the right to make contributions to credit institutions and dispose of them (clause 3, article 26 of the Civil Code of the Russian Federation).
The court has the right to limit the legal capacity of a citizen if he abuses alcohol or drugs and thereby puts his family in a difficult financial situation. Such a person has the right to independently make only small household transactions. A person with limited legal capacity has the right to make other transactions (including the conclusion of a bank deposit agreement) only with the consent of the trustee. Consequently, with a person with limited legal capacity, a bank deposit agreement can be concluded only with the written consent of the trustee.
Partially capable people - minors between the ages of 6 and 14 (they are also called minors) - have very little legal capacity, which does not include the possibility of concluding a bank deposit agreement. Such children can become participants in a bank deposit relationship, but an agreement on their behalf can be concluded by their parents, adoptive parents, guardians.
Completely incapacitated people. These include children under the age of 6, as well as adults who, due to mental illness or dementia, cannot understand the meaning of their actions or control them and therefore have been declared legally incompetent by the court. These people can also be subjects of bank deposit relations, but their legal representatives conclude an agreement on their behalf: 1) in relation to children under the age of 6 - their parents, adoptive parents, guardian; 2) in relation to incapacitated adults - their guardians.
As for legal entities, all of them can enter into bank deposit agreements as depositors. In this case, it does not matter what is the organizational and legal form of a legal entity and on what form of ownership it is based. However, if a legal entity has special legal capacity, then it is necessary that the conclusion of a bank deposit agreement does not go beyond this legal capacity.
Unlike many other agreements, the bank deposit agreement is unilaterally binding. This means that as a result of its conclusion, obligations arise only on one side - on the side of the bank.
The bank deposit agreement is a service agreement. Therefore, in cases where the depositor is a person, this agreement is subject to the Law of the Russian Federation "On Protection of Consumer Rights" 9.
Art. 841 of the Civil Code of the Russian Federation allows third parties to deposit funds to the depositor's account, provided that the necessary information about his deposit account is indicated. In this case, it is assumed that the depositor has agreed to receive funds from such persons by providing them with the necessary data on the deposit account.
The responsibilities of the bank include: return to the depositor of the amount of the deposit, payment of the due interest, compliance bank secrecy, ensuring the return of the deposit, in accordance with Art. 840 of the Civil Code of the Russian Federation.
The return of deposits of citizens by the bank is ensured through a process carried out in accordance with Federal law dated December 23, 2003 No. 177-FZ "On insurance of deposits of individuals in banks of the Russian Federation" 10. Participation in the deposit insurance system is compulsory for all banks. Funds of individuals are subject to insurance, except for monetary funds:
1) placed on bank accounts of individuals engaged in entrepreneurial activity without forming a legal entity, if these accounts are opened in connection with the specified activity;
2) placed by individuals in bearer bank deposits, including those certified by a savings certificate and (or) bearer savings book;
3) transferred by individuals to banks in trust management;
4) placed in deposits in branches of banks of the Russian Federation located outside the territory of the Russian Federation.
Reimbursement for deposits is paid to the depositor in the amount of 100 percent of the amount of deposits in the bank, but not more than 100,000 rubles. If a depositor has several deposits in one bank, the total amount of obligations of which on these deposits to the depositor exceeds 100,000 rubles, compensation is paid for each of the deposits in proportion to their size. If the insured event occurred in relation to several banks in which the depositor has deposits, the amount insurance compensation calculated for each bank separately11.
When implementing compulsory insurance, banks are obliged to: pay insurance premiums to the compulsory deposit insurance fund; to provide depositors with information about their participation in the deposit insurance system, about the procedure and amounts of receiving compensation for deposits; post information about the deposit insurance system in the bank premises accessible to depositors, where depositors are serviced; keep records of the bank's liabilities to depositors, which allows the bank to form on any day a register of the bank's obligations to depositors in the form established by the Bank of Russia at the Agency's proposal.
If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in the event of loss of collateral or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount of the bank refinancing rate and compensation for losses caused.
Under a bank deposit agreement of any type, the bank is obliged to issue the deposit amount or a part thereof at the first request of the depositor, with the exception of deposits made by legal entities on other terms of return provided for by the agreement. The condition of the agreement on the waiver of the citizen from the right to receive a deposit upon first demand is null and void (clause 2 of article 837 of the Civil Code of the Russian Federation). The presentation by the depositor of a demand for an early return of the deposit amount constitutes a unilateral amendment of the terms of the agreement permitted by law on the initiative of the depositor. As a result, a fixed-term, targeted or conditional bank deposit agreement turns into a demand deposit agreement.
The depositor shall bear the negative property consequences of such a change in the agreement. Under an early terminated or amended agreement, the same interest is charged on the deposit amount as on the amount of the “demand” deposit, which is significantly lower than the interest on the term deposit, unless a different interest for this case was specifically provided for in the agreement. At the same time, lower interest is charged in such cases for the entire period from the moment when the depositor's money was deposited in the bank until the moment of their issuance. Even if the depositor does not demand from the bank the entire term deposit, but only a part of it, he is charged more than low interest established for demand deposits.
Unlike citizens, legal entities that have made a term deposit to the bank do not have the unconditional right to demand its early return. Such a right may be provided for by the bank deposit agreement upon its conclusion. If this is not the case, then the early return of such a deposit is possible only with the consent of the bank. This rule applies only to cases where the depositor is a commercial organization. If the depositor of the fixed-term treasure is a non-profit organization, under no circumstances it shall have the right to demand early return deposit amount12.
The bank deposit agreement is onerous. Its retribution is peculiar and manifests itself in the fact that the bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement. In the absence of a clause on the amount of interest paid in the agreement, the bank is obliged to pay interest in the amount of the refinancing rate of the Central Bank of the Russian Federation (clause 1 of article 838 of the Civil Code of the Russian Federation). The bank is entitled to use its funds at its own discretion until the depositor submits a demand for the return of the deposit. Most often, depositors' funds are used by the bank to carry out its lending operations. So the interest on the amount of the deposit, in essence, is a payment made by the bank for the use of other people's funds.
Payment of interest to the depositor on the amount of the deposit is an indispensable obligation of the bank. If the agreement stipulates that the bank is not obliged to pay the specified interest, this means that such an agreement is not a bank deposit agreement. It can be viewed as an interest-free loan agreement, the conclusion of which is permitted by law.
In the Civil Code of the Russian Federation, this issue is resolved ambiguously, depending on the type of contribution. On demand deposits (and such deposits are the majority, and the depositors are mainly citizens), the bank has the right to change the amount of interest paid on deposits, unless otherwise provided by the bank deposit agreement (part 1, clause 2, article 838 of the Civil Code of the Russian Federation). Usually, such a change is a decrease in the specified percentage, although the bank has the right to increase the mentioned percentage. According to Part 2, Clause 2, Art. 838 of the Civil Code in the event of a decrease in the amount of interest by the bank, the new amount of interest is applied to deposits made before the depositor's notice of the decrease in interest, after a month from the date of the corresponding notice, unless otherwise provided by the contract. For depositors, this rule is a very weak consolation.
The depositor may be notified of the upcoming decrease in interest on the deposit different ways: by mail, fax, etc. Savings bank notifies its contributors about this by publishing the corresponding message in the periodical press.
The bank deposit agreement may provide for a different procedure for the bank to exercise its right to reduce the amount of interest on demand deposits. The bank's decision to increase the interest on demand deposits comes into effect in the manner established by the bank itself. The bank is not obliged to notify depositors of such a decision13.
If a citizen depositor has made an urgent target or conditional deposit, the amount of interest established at the conclusion of the agreement cannot be changed by the bank unilaterally, unless otherwise provided by law. The bank cannot include its right to reduce the interest on a term deposit in the terms of the bank deposit agreement upon its conclusion. If such a condition is included, it has no legal value.
This rule of law does not coincide with the provision of Art. 29 of the Law of the Russian Federation "On Banks and Banking Activities", which gives the right credit institution change, including in the direction of decrease, the amount of interest on deposits, if this is provided for by an agreement with a depositor, including with a citizen. Since the norms of the Civil Code of the Russian Federation have greater legal force than the norms of current legislation, in such cases the norms of Art. 838 of the Civil Code of the Russian Federation.
If an agreement on a fixed-term bank deposit is concluded with a legal entity, the amount of interest cannot be unilaterally changed, unless otherwise provided by law or agreement (clause 3 of article 838 of the Civil Code of the Russian Federation). Consequently, in such cases, the parties, when concluding a bank deposit agreement, have the right to provide for the bank's right to unilaterally change the amount of interest accrued on the deposit.
Interest on the amount of a bank deposit is calculated from the day following the day it was received by the bank until the day preceding its return to the depositor or its debiting from the depositor's account for other reasons permitted by law. The terms and procedure for paying interest on the deposit (on what dates, monthly, quarterly, half-year, annually, with their capitalization or without capitalization) can be established by the bank deposit agreement. If this issue is not resolved in the agreement, interest on the amount of the bank deposit is paid to the depositor at his request at the end of each quarter, separately from the amount, and the interest not claimed during this period increases the amount of the deposit on which interest is calculated. When the deposit is returned, all interest accrued to that moment is paid (Article 839 of the Civil Code of the Russian Federation).
In the event that the claim for the return of the deposit is submitted before the end of the period for which interest is calculated, the latter are calculated based on the actual time of using the client's funds and are paid simultaneously with the principal amount of the deposit.
Depositing funds into a bank under a bank deposit agreement entails significant risk for the depositor, in particular, the risk of not receiving the deposit amount back, as millions of Russian depositors have learned from their own bitter experience, who entrusted their money to unreliable banks. In order to prevent such consequences, the Civil Code of the Russian Federation regulates ensuring the return of deposits by banks (Article 840 of the Civil Code of the Russian Federation).
Banks are obliged to ensure the return of citizens' deposits through compulsory insurance, and in cases stipulated by law - in other ways.
Measures to ensure the return of deposits by banks depend on who is the depositor of the bank. If the depositor is a citizen, the return of the deposit is provided:
Compulsory insurance of deposits at the expense of funds federal fund compulsory deposit insurance, as provided for by Art. 38 of the Law of the Russian Federation "On Banks and Banking Activities";
Subsidiary liability of the Russian Federation, its constituent entities and municipalities... This rule is not of a general nature and applies only to deposits made to a bank, in the authorized capital of which the Russian Federation, constituent entities of the Russian Federation or corresponding municipalities have more than 50% of shares or participation interests;
Voluntary deposit insurance in accordance with Art. 39 of the Law "On Banks and Banking Activities";
Through the use of traditional Russian civil law measures to ensure the fulfillment of obligations (forfeit, pledge, surety, etc.) 14.
It is possible for citizen depositors to submit claims for subsidiary liability of the Russian Federation, its constituent entities and municipalities, provided that they (depositors) have already submitted claims for the return of their deposits directly to the banks that received their deposits, but the banks' property turned out to be insufficient to meet these requirements (Art. 399 of the Civil Code of the Russian Federation).
If the depositor of the bank is a legal entity, the methods of ensuring the return are established by agreement of the parties when concluding the deposit agreement. In this case, such methods of securing obligations are used as forfeit, pledge, surety, bank guarantee... The deposit and retention due to their peculiarities cannot be used for this purpose.
In order to strengthen the protection of the interests of depositors, the law (clause 3 of article 840 of the Civil Code of the Russian Federation) obliged banks, when concluding bank deposit agreements, to provide depositors with information on the security of the return of the deposit. The methods of bringing this information to the clients are determined by the bank. Often this is done by posting relevant announcements in the bank's operating room.
If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in the event of loss of collateral or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount determined by the agreement or the refinancing rate for the entire period of the actual use of the depositor's funds, as well as compensation for damages.
Usually, a deposit in a bank is made out in the name of the person who makes it. In other words, the depositor is the citizen or legal entity that has entered into a deposit agreement with the bank. But the law (Article 842 of the Civil Code of the Russian Federation) allows making a contribution to the bank in the name of another person who is not involved in the conclusion of an agreement with the bank. In some cases, the need for such a deposit is determined by the type of deposit. Such is, for example, pension contribution... In the Civil Code of the Russian Federation, Art. 841, according to which, unless otherwise provided by the bank deposit agreement, the funds received by the bank in the name of the depositor from third parties are credited to the deposit account, indicating the necessary data on his deposit account. Unless otherwise provided by the bank deposit agreement, a third party acquires the rights of a depositor from the moment he submits the first claim to the bank based on these rights, or expresses his intention to use such rights to the bank in a different way.
The indication of the name of the citizen or the name of the legal entity in whose favor the deposit is made is an essential condition of such a bank deposit agreement.
Having analyzed the content and responsibility of the parties under the bank deposit agreement, we note that the main obligations of the bank are to return the amount of the deposit and pay interest on it. In addition, when concluding a bank deposit agreement, he must provide the depositor with information about the security of the return of the deposit (clause 3 of article 840 of the Civil Code). The methods of bringing this information to the attention of clients are determined by the bank. An equally important obligation of the bank is to pay interest on the deposit. The next duty of the bank is to maintain bank secrecy. The main right of the bank is the ability, at its discretion, to own, use and dispose in its own interest of the sums of money transferred to the deposit. A depositor on a term or conditional deposit does not have the right to demand that the bank make non-cash payments from the deposit, since this requirement contradicts the essence of the term (conditional) deposit. The depositor has the right at any time to demand the return of the amount of the deposit made under any conditions. The next depositor's right is the ability to unilaterally, by default, extend the term of the term or conditional bank deposit agreement.
For most citizens of Russia and other countries with financial savings, the only way to save capital from inflation, that is, from depreciation and try to make a profit at the same time, is a deposit, that is, a bank deposit for a certain period, or a demand deposit. In this post we will look at important aspects concluding a bank deposit agreement, you will learn what this document is, what are the rights and obligations of the depositor and the bank.
A bank deposit agreement is a certain type of civil law agreement that does not lose its popularity year after year, allowing citizens to protect their money from inflationary processes, the risk of cash theft, allowing access to finance from different places, and at the same time getting a certain profit.
Issues covered in the material:
What is a bank deposit agreement according to civil law?
Let's focus on what constitutes a bank deposit agreement - it is a kind of legal power of attorney, documented, on the basis of which the banking organization receives from the depositor or in his name sum of money assuming obligations for a certain period of time, to pay deposit income in the form of interest. In this case, the bank is obliged to return the deposit within the period prescribed by the contractual agreement, without violating the conditions specified therein.
If you turn to Civil Code Russia, then in Chapter 44 (from Article 834 to Article 844) you can get acquainted with important nuances legal regulation the rights and obligations of the parties under the bank deposit agreement. This chapter is called “Bank deposit”. Certain legislative norms contain references to Chapter 45 of the Civil Code, which regulates issues related to bank account.
According to the concept of a bank deposit announced by the Civil Code, the parties to this agreement are:
- A depositor, that is, an investor party, which can be an organization or an individual (citizen), in whose name the deposit is drawn up.
- Credit institution, such as a bank.
To accept deposits on legal grounds, the credit structure must have the appropriate permission - banking. According to Art. 36 of the Law "On Banks ..." dated 02.12.1990 No. 395-1, the license allows you to freely work with bank deposits. According to the Civil Code, not only banking organizations are allowed to manage depositors' funds, but also credit institutions... But there is an important nuance here, that you can only work with investing companies.
If we talk about citizens acting as investors under a bank deposit agreement, then according to Art. 37 legislative act No. 395-1, they can be:
- Russian citizens;
- Persons without citizenship;
- Foreign citizens.
You should be aware that adolescent citizens who have reached the age of 14 have the right to personally manage their monetary deposits, and younger children who do not have a passport have the right to operate savings through legal guardians and representatives.
In addition, if an individual acts as an investor, the bank deposit agreement will be public, that is, it will be a document that is signed with each citizen who applies to the bank.
What are the obligations and powers of the bank according to the agreement and the law?
Taking into account the situation that for a specific time period (validity period of the document) the bank is in fact the owner of the depositor's money savings under the bank deposit agreement, the area of obligations of this party to the transaction is somewhat larger than that of the investor. Here is a list of responsibilities banking organization for the duration of the contract:
- According to the interest rate specified in the agreement, to pay profits on the deposited deposit. This obligation of a banking organization originates from the legislative designation of a bank deposit agreement. The period and rates of payment of interest on the deposit are spelled out in the agreement - they are discussed between the counterparties before signing the document. In situations where the interest rate is not spelled out, it is calculated on the basis of refinancing rates, and the payment of money is carried out once a quarter at the depositor's request.
- Return the depositor's funds in due time in the manner and on the conditions stipulated by the agreement. If you turn to the Civil Code of Russia, then this obligation of the bank is spelled out there.
- The bank must take measures of a security nature in order to return the funds provided by the depositor. Moreover, this point is closely intertwined with his main obligation to the investor - the return of the deposit. This gives the investor a guarantee of deposit insurance from unreliable partners and unfavorable circumstances. An important nuance: individuals who are depositors are provided with a security measure for the return of deposits - this is insurance of invested savings within the framework of the Federal Law "On Insurance of Individual Deposits in Banks of the Russian Federation" dated 23.12. 2003 "177-FZ. Coordination of interim measures for deposits of legal entities should be carried out through a bank deposit agreement.
Credit institutions, within the framework of a bank deposit agreement, have the right to attract financial assets of citizens, having an appropriate license. By law, banks have the right to reduce the interest on a term deposit, but such details must be stipulated in the agreement with the depositor.
Obligations and rights of the investor-investor
By its nature, the bank deposit agreement is unilateral, therefore the investor has no reciprocal obligations. The only requirement can be applied to a depositor under a bank deposit agreement - to fulfill the conditions prescribed by the agreement.
On the legislative level and under the bank deposit agreement, the investor has the following powers:
- The right to profit from funds transferred to the bank on the terms established by the bank deposit agreement (or at the legislative level).
- The right to draw up a bank deposit agreement (this point works relatively individual investor).
- The right to demand that monetary contribution was returned. This clause is intertwined with the right to receive interim measures for the return of the deposit.
In addition to the above, the depositor has the right to urgently claim interest income, the deposit itself and pay off the losses if the funds were transferred to an organization that does not have an appropriate license to work under bank deposit agreements.
Types and types of bank deposits
Choosing which bank deposit / deposit agreement to conclude with banks, you should know that deposits are different types, they differ in terms of placement, purpose of financial products, functionality.
When we talk about division by terms, you need to know that all bank deposits are divided into demand deposits and time deposits.
Demand deposit- the bank undertakes to return the invested funds (currency) to the client at his first request at any time. This banking product represents an indefinite income for the credit institution, which does not allow the bank to plan its income and attract money for a long time, therefore the profitability for the client in this type of deposit is minimal, usually from 0.1-1 %%
Term deposit- the name of this type of deposits can be confusing, it does not mean that money is invested in the bank in some kind of turmoil, we are talking about the TIME of placing a deposit. Such deposits allow the bank to attract the depositor's money strictly according to the agreement for a certain period, for example, for several months, a year or several years.
Most often, the agreement contains a clause according to which the depositor has the opportunity to withdraw his money from the bank ahead of schedule, but then the client's losses will be tangible, roughly speaking, interest at early withdrawal will be the same minimum as for demand deposits, that is, an order of magnitude less profitable. Thus, banks motivate customers to keep money on the deposit no less than what is prescribed under the bank deposit agreement.
It is worth mentioning separately that term bank deposits are subdivided according to their purpose:
- savings,
- cumulative,
- calculated.
The most common urgent one is savings deposit , most often banks in contracts limit the possibility of replenishment or partial withdrawal from such deposits, but also interest rates for such deposits the highest and most profitable for depositors.
Savings deposits have more flexible conditions and allow the client to replenish the deposit during the entire term of the agreement with the bank. Such placement of funds is very convenient for those who plan to accumulate a large amount by systematically adding funds to the deposit, receiving also interest on the deposit. Of such kind bank savings deposits convenient for those who want to buy real estate or an expensive car, for example.
Calculated deposits can be replenishment and expenditure. This type of deposit allows the depositor to fully manage the money on his deposit, making expenditure or receipt transactions.
Please note that bank deposits under an agreement with individuals are protected by the deposit insurance system (DIS), the deposit insurance agency (DIA) acts as a guarantor under this system in accordance with Federal Law No. 177-FZ "On insurance of deposits of individuals in banks of the Russian Federation "dated December 23, 2003.
Please be aware that corporate bank deposits are not subject to state system deposit insurance.
Under the agreement of bank deposit (deposit), one party (bank), which has accepted the money received from the other party (depositor) or received for it, the sum (deposit), undertakes to return the amount of the deposit and pay interest on it on the terms and in the manner prescribed by the agreement (p. . 1 article 834 of the Civil Code of the Russian Federation).
The bank deposit agreement is real, bilateral and onerous. If the depositor is a citizen, then the contract is recognized as public. Banks that have been granted such a right in accordance with a permit (license) issued by The central bank RF. Only banks participating in the system of compulsory insurance of deposits of individuals have the right to attract funds from citizens.
The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate or other document issued by the bank to the depositor (for example, by plastic card) that meet the requirements of the law, banking rules or business customs.
Deposits are divided into 2 types:
1. Demand deposits... Variety - numbered deposits. Peculiarity - special order disposing of these deposits. Order to the bank (order) on the commission on the deposit of credit or expense transactions, signed by the depositor, instead of the name contains only the number of his contribution. Drawn up by a Numbered Contribution Agreement.
1. Time deposits- any deposits, under the terms of which the client cannot demand the return of the funds deposited by him before the onset of the circumstances specified in the contract. The most common are term deposits for a certain period of time, during which the bank is entitled to use these funds.
Kinds term deposits :
Targeted (can be entered for 10 years in the name of persons under the age of 16);
Conditional (deposits made in the name of another person who can dispose of the deposit only if the conditions are met or upon the occurrence of circumstances specified by the depositor at the time of opening the account).
By the parties bank deposit agreement, according to Art. 834 GK, are bank and depositor.
Obligations of the bank:
- return to the depositor the amount of the deposit in the manner prescribed in the agreement.
- to pay him remuneration in the form of interest for the entire period of using other people's funds.
- provide the depositor with security for the return of the deposit in one of the ways provided by the law.
The legislation provides that the return of deposits of citizens can be ensured by:
a) compulsory insurance at the expense of the federal fund of compulsory deposit insurance
b) subsidiary liability of the Russian Federation, constituent entities of the Federation, as well as municipalities for bank debts - in cases established by law;
v) voluntary insurance deposits (Article 39 of the Law "On Banks and Banking Activities");
d) implementation traditional ways ensuring by the bank the return of deposits provided for in the agreement (clause 2 of article 840 of the Civil Code).
All deposits are subject to insurance, including those placed in the bank on the basis of a bank agreement
Bank's responsibility:
For accepting a deposit in violation of the procedure established by law;
For late return of the deposit amount;
For late payment of interest; failure to fulfill obligations to ensure the return of the deposit amount.
Question. Bank account agreement: concept, rights and obligations of the parties under the agreement, responsibility. Types of bank accounts. The procedure for debiting funds from the client's account. The order of the write-off.
According to the bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account holder), follow the client's orders to transfer and issue the corresponding amounts from the account and conduct other transactions on the account.
The agreement is consensual, bilateral and, as a general rule, compensated. The bank is obliged to conclude a bank account agreement with a client who has applied to open an account on the conditions announced by the bank for opening accounts of this type, but the bank account agreement cannot be considered public. Its conditions will be determined by the regime of the corresponding type of account - settlement, current or special (budget, currency, etc.), i.e. depend on the purpose for which the account is opened and the category of the client.
When concluding a bank account agreement, a bank account is opened for the client or a person indicated by him on the terms agreed by the parties. As a general rule, the withdrawal of funds from the account is carried out by the bank on the basis of the client's order. The bank shall be obliged to perform operations for the client provided for by the law for this type of account, banking rules and business customs applied in banking practice, unless otherwise provided by the bank account agreement. The client's funds are credited, issued or transferred no later than the day following the day the corresponding payment document is received by the bank, provided that a shorter period is not provided for by law, banking rules or an agreement.
The bank is obliged to keep the secrecy of the bank account and bank deposit, account transactions and customer information. He is not entitled to determine and control the directions of using the client's funds and establish other restrictions not provided for by law or the bank account agreement on his right to dispose of funds at his own discretion. At the same time, the funds available on the client's account can be used by the bank with guaranteed observance of the client's rights to freely dispose of these funds.
The bank account agreement is terminated at the request of the client at any time. The bank has the right to refuse to execute the bank account agreement (by notifying the client in writing about this) if there are no funds on the client's account for two years and no transactions are made on this account.
TYPES OF BANK ACCOUNTS:
For universal and special;
Depending on the currency of the account;
Depending on the account holder;
Depending on the intended purpose funds;
Depending on the possibility of replenishment or partial withdrawal of funds.
1. Non-refillable. During the entire term of the deposit, additional contributions are not accepted.
2. With the possibility of replenishment.
3. With the possibility of partial withdrawal of funds. - depending on the accrual of interest on bank accounts.
On this basis, bank accounts are divided into:
1. Monthly calculation of interest.
2. Accrual of interest at the end of the term.
3. Interim accrual of interest.
The procedure for debiting funds from the account |
In accordance with Article 854 of the Civil Code of the Russian Federation, the withdrawal of funds from the account without the client's order is allowed, in particular, in cases established by law. Thus, in accordance with Article 854 of the Civil Code of the Russian Federation, in the absence of an agreement between the bank and the client for debiting funds without the client's order, funds can be debited from the client's account only in cases established by law, or by a court decision. It is necessary to distinguish between undisputed and direct debit. In the legal literature, attention is drawn to the following differences between the two types of write-offs - an indisputable write-off is based on the provisions of the law, and a non-acceptance one - on the terms of an agreement; - has the right to an indisputable write-off government agency, and for non-acceptance - a counterparty for a civil transaction; - the right to an indisputable cancellation arises from power (administrative, tax) relations, to a non-acceptance one - from legal relations based on equality. The bank account agreement may provide for the following provisions on the direct debit of funds from the account without the client's order: “The Bank has the right to debit the following amounts from the Client's Account without authorization: - the Bank's commissions calculated in accordance with the Tariffs; - commissions payable to third parties in connection with operations on the Account (Deposit); - any interest, penalties, fines payable by the Client, including interest accrued for crediting the Account; - taxes that the Bank is obliged to withhold from the Client in accordance with current legislation; - postal, telegraph and other expenses and expenses of the Bank arising from the execution of the Customer's orders; - funds mistakenly credited to the Account; - the amount owed by the Client to the Bank for any obligations arising from agreements concluded between the Bank and the Client "The Client, in accordance with clause 2 of Article 847 of the Civil Code of the Russian Federation, has the right to give the bank an order to write off funds from his account at the request of third parties, including including in connection with the fulfillment of his obligations to these persons. The bank is obliged to accept such orders if they contain written instructions containing the necessary data, allowing, upon presentation of a relevant request, to identify the person entitled to submit it. Along with direct write-off, uncontested write-off is allowed by a court decision. So, in accordance with Article 48 of the Tax Code of the Russian Federation, from an individual who is not individual entrepreneur in case of non-fulfillment by a taxpayer - an individual who is not an individual entrepreneur, in set time obligations to pay tax, the tax authority (customs authority) has the right to apply to the court with a claim for the collection of tax at the expense of property, including funds in bank accounts and cash, this taxpayer- an individual who is not an individual entrepreneur, within the limits of the amounts specified in the claim for payment of tax. Indisputable write-off in relation to bank accounts of individuals is allowed only upon collection of executive documents... It should be especially noted that performance list, issued by the court, is not a settlement document, therefore, when collecting funds on the basis of executive documents, recoverers must submit to the bank a collection order containing a reference to the date and number of the executive document, as well as the name of the authority that issued the decision subject to compulsory execution. accounts. If there are funds on the account, the amount of which is sufficient to meet all the requirements for the account, these funds are debited from the account in the order of receipt of the client's orders and other documents for debiting, unless otherwise provided by law, i.e. in the order of calendar priority (clause 1 of article 855 of the Civil Code of the Russian Federation). However, in the event that the funds on the account are not enough to satisfy all the requirements presented to it, the funds are debited in the order of priority established by law. The Civil Code provides for the following priority for these cases: - 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; - in the second place, write-offs are made according to executive documents providing for the transfer or issuance of funds for settlements for 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 contract; - 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 agreement (contract), as well as on deductions to Pension Fund Russian Federation, Fund social insurance The Russian Federation and State fund employment of the population of the Russian Federation and funds of compulsory health insurance; - in the fourth stage, write-offs are made according to payment documents providing for payments to the budget and extrabudgetary funds deductions to which are not provided in the third priority; - in the fifth stage, the write-off is carried out according to executive documents, providing for the satisfaction of others monetary claims; - in the sixth order, debiting is made according to other payment documents in the order of calendar priority. |
It is important to keep in mind that funds are debited from the account for claims related to one queue, in the order of the calendar order of receipt of documents.
Mandatory priority provided for in Art. 855 of the Civil Code of the Russian Federation, became the object of disputes related to the determination of the priority of claims tax authorities in relation to other requirements, in particular, on the transfer or issuance of funds for settlements on wages with persons working under an employment agreement (contract).
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