Placement of attracted funds on its own behalf and at its own expense and a loan agreement. Placement of funds attracted in deposits on its own behalf and at its own expense Attracted funds at its own expense
11. In accordance with the legislation of the Russian Federation, banking operations include:
A. Provision of information services.
B. Leasing to individuals and legal entities safes for storing valuables.
C. Making settlements on behalf of individuals and legal entities.
D. Rent of premises for commercial activities.
12. A commercial bank is:
A. Structural subdivision Ministry of Economy.
B. Depository of gold and foreign exchange reserves.
C. Intermediary in settlements and lending.
D. Financial agent of the government.
13. The clients of the central bank are generally:
A. Directly enterprises and organizations of various sectors of the economy.
B. Individuals.
C. Only credit institutions.
D. All legal entities.
14. Modern commercial banks provide services:
A. Enterprises, organizations and the population.
B. Only the population and the central bank.
C. Only enterprises and organizations.
D. Only enterprises, organizations and the central bank.
15. Regardless of the form of ownership when creating commercial banks, they are ... subjects.
A. Dependent on the government.
B. Self-reliant.
C. Accountable to the President.
D. Dependent on the board of the central bank.
16. In accordance with the legislation of the Russian Federation, commercial banks are entitled to:
A. Issue banknotes into circulation.
C. Maintain stability purchasing power national currency.
D. To issue guarantees for third parties.
17. Commercial banks carry out operations on:
A. Monopoly issue of banknotes.
B. Attraction Money legal entities and individuals in deposits.
C. Ensuring the stability of the purchasing power of the monetary unit.
D. Maintaining liquidity banking system country.
18. What activities are prohibited from lending institutions?
A. Loan activities.
B. Settlement and cash services clients.
C. Trading activities.
D. Opening and maintaining accounts of individuals and legal entities.
19. In accordance with the legislation of the Russian Federation, commercial banks have the right to:
A. Pursue monetary policy.
B. Compete with The central bank RF.
C. Maintain the stability of the banking system.
D. Open and maintain accounts for individuals and legal entities.
20. A credit institution is prohibited from engaging in:
A. Settlement and cash services to customers.
B. Accumulation of free funds of legal entities.
C. Insurance activities.
D. Advising on banking.
21. A credit institution is prohibited from engaging in:
A. Accounting for bills.
B. Lending to individuals.
C. Organization of settlements between clients.
D. Production activities.
1.2. Objectives and functions of the Central Bank of the Russian Federation
1. Authorized capital and the property of the Central Bank of the Russian Federation is ... property.
A. Federal.
B. Stock.
C. Private.
D. Joint.
2. The capital of the Bank of Russia is formed by:
A. State funds.
B. Donations from individuals.
C. Funds of commercial banks.
D. Funds of enterprises and organizations.
3. The purpose of the activity of the Central Bank of the Russian Federation is not:
A. Issuance of loans to credit institutions.
B. Maintaining the stability of the Russian ruble.
C. Lending to individuals.
D. Lending to the government.
4. In accordance with Russian legislation, the collegial body and supreme governing body of the Bank of Russia is:
A. Board.
B. Banking Supervision Committee.
C. National Banking Council.
D. Board of Directors.
5. How many people are on the National Banking Council?
6. The National Banking Council meets at least once in:
A. Quarter.
C. Six months .
7. Members of the Board of Directors of the Central Bank of the Russian Federation.
The market of services for placing attracted funds in the most profitable segments of the economy is represented by the following banking services specified in the Banking Law:
1) placement of funds on their own behalf and at their own expense;
2) issuance of bank guarantees;
3) issuance of guarantees for third parties, providing for the fulfillment of obligations in cash;
4) the acquisition of the right of claim from third parties for the fulfillment of obligations in cash;
5) leasing operations.
Bank services for placing funds on their own behalf and at their own expense represent the most important group of banking operations, called active. When carrying out active operations, the bank acts on its own behalf as the owner of funds, regardless of whether the bank's own capital or borrowed funds are the source of funds.
The active operations of banks include the issuance of loans by the bank, including interbank loans, the purchase by the bank on its own behalf of securities, currency, precious metals etc. Bank margin can be expressed in the form of interest or in the form of exchange rate differences. So, when a bank buys bills of exchange, the bank relies primarily on income in the form of interest paid on these securities. When a bank buys shares, as a rule, it expects a positive change in the market value of these securities.
A special place among active operations is occupied by the issuance of loans by banks. Loan agreement- a type of loan agreement with a special entity (credit institution) on the side of the lender. Under the loan agreement, the credit institution undertakes to provide funds to the borrower on the terms stipulated by the agreement, and the borrower undertakes to return the received sum of money and pay interest on the loan.
As a rule, the conditions for granting a loan are set in a loan agreement in some detail. At the same time, in order to conclude a loan agreement, it is sufficient to reach an agreement only on the amount of the loan, because all other conditions can be determined on the basis of the law.
Typically, a loan is issued with the provision of collateral for its return. The security can be a pledge of the property of the borrower or a third party, a bank guarantee, a guarantee of a third party, guarantees and sureties of bodies government controlled Russian Federation, its subjects and municipalities... It should be noted that among those indicated in Ch. 23 of the Civil Code of the Russian Federation of ways to ensure obligations in practice bank lending not all are applied effectively enough. So, the forfeit is seen rather as a measure of responsibility for improper performance by the borrower of its obligations, and not as a way to secure the obligation; Withholding is also rarely used: this requires that the lending bank owns any assets of the borrower, which happens very rarely. As a rule, the role of securing a loan in banking practice is performed by an insurance policy of insurance of entrepreneurial risk.
The service for the purchase of bills of exchange of third parties by the bank is widespread. As a result, the same economic effect is achieved as with lending: the persons liable for the securities receive the funds they need.
It is characteristic that this banking operation, the name of which is given in clause 2 of Article 5 of the Federal Law "On Banks and Banking Activities" (hereinafter referred to as the Federal Law), does not contain the term "credit".
Because the placement of funds attracted by a credit institution is not limited to a bank loan. For example, a lending institution can buy securities, bills of exchange, precious metals and carry out other active operations. But, of course, the largest share in its active operations is traditionally taken by bank loans.
one). Credit and banking transaction for the placement of funds
Bank loan is a kind of banking operation on the placement of funds attracted by the credit institution.
In banking practice, the term "loan" and the term "credit" are often used interchangeably. In order to be convinced of this, just look at the rules accounting in credit institutions. The use of such terms has become so widespread and entered into everyday, professional use, that attempts to change it make no sense. Credit institutions use Information Technology and software products in which this term is used. Although according to the Civil Code of the Russian Federation, a loan agreement is an agreement for the gratuitous use of a thing.
Any loan has the right to issue commercial organization... And only a credit institution can issue a loan. This approach was previously based on the fact that in paragraph "a" of Part 1 of Art. 5 "Banking Operations and Transactions" of the now inoperative version of the Law of the RSFSR of December 2, 1990 "On Banks and Banking Activities in the RSFSR" (as amended on December 13, 1991, June 24, 1992), the norm was fixed, which stipulated that banks can "attract deposits (deposits) and provide loans by agreement with the borrower. It turned out that in the very wording of the banking operation the term" credit "was used. But after in 1996 this Law was outlined in new edition(like the Federal Law "On Banks and Banking Activities"), the situation has changed.
According to the Federal Law of February 3, 1996 "On Amendments and Addenda to the Law of the RSFSR" On Banks and Banking Activities in the RSFSR ", organizations have the right to carry out systematic commercial lending at interest, since the provision of loans is not included in the list of banking operations. * (310 ) However, we can only talk about commercial lending. About it, in more detail, say, when it comes to the types of loans. But as for bank lending, here everything is more complicated.
V Federal law"On banks and banking activities", namely in its article 5, it is said that banking operations include: "1) attracting funds from individuals and legal entities in deposits (on demand and for a specified period); 2) placement of funds specified in paragraph 1 part one of this article funds raised on their own behalf and at their own expense ... ". As we can see from the above quote, the term" credit "is absent in it. In the wording of the second banking operation, reference is made to clause 1 of the first part of this article. not all attracted funds of individuals and legal entities, but only their deposits.
It turns out that placing only deposits, and not any attracted funds, is a banking operation, which, as stated in the same Federal Law, requires banking license.
As we remember in Article 1 of the Federal Law "On Banks and Banking Activities" it is said that "a credit institution is a legal entity that has the right to carry out banking operations provided for by this Federal Law. "
Part 1 of Article 13 of the Federal Law states that "banking operations are carried out only on the basis of a license issued by the Bank of Russia in the manner established by this Federal Law." And then, in part 6-8 of the same article of the Federal Law, it is said that "the implementation of banking operations by a legal entity without a license entails the collection from such a legal entity of the entire amount received as a result of these operations, as well as the collection of a double the amount of this amount in federal budget... The collection is carried out in judicial procedure at the request of the prosecutor corresponding federal body the executive branch, authorized by federal law, or the Bank of Russia.
The Bank of Russia has the right to present arbitration court a claim for the liquidation of a legal entity carrying out banking operations without a license.
Citizens who illegally carry out banking operations bear civil, administrative or criminal liability in accordance with the procedure established by law. "
So, it would seem that everything is clear. If an organization carries out a banking operation, then it must obtain a banking license. But it only remains to prove that the organization is carrying out a banking operation. In this case, this means that a loan as a banking operation can be considered as such if there are signs specified in paragraph 2 of Art. 5 of the Federal Law. That is, the organization places attracted deposits of individuals and legal entities. But if it does not place deposits, but other attracted funds, then it no longer falls under the requirements of the Federal Law.
True, the Civil Code of the Russian Federation has criteria for determining who can provide funds under a loan agreement. Part 1 of Art. 819 of the Civil Code of the Russian Federation states that "under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the contract, and the borrower undertakes to return the amount received and pay interest on it." It turns out that loan agreement communicates only with a bank or other credit institution. This means that only a credit institution can conclude a loan agreement. But, after all, funds can be provided not under a loan agreement, but under a loan agreement. And if they - own funds the lender, then no questions about the banking license arise at all. It's another matter if it is borrowed funds... But again, only two types of attracted funds act as a limitation - deposits of individuals and legal entities.
The conclusion is this: the wording of the canceled edition of the Law of the RSFSR "On Banks and Banking Activities" defined credit as a banking operation. Now, a loan acts as a transaction, and a banking operation is a technology for its implementation. In the Federal Law, this technology is designated by the term "placement of funds".
The types of placement of funds attracted by a credit institution are quite diverse. These are, for example, the placement of precious metals attracted as deposits, the purchase of precious stones, the issuance of loans in precious metals, the placement of deposits with other credit institutions, the acceptance of securities as collateral for issued loans, the accounting of bills of exchange, the purchase of bonds, the purchase of commemorative coins, financing on an assignment monetary claims (factoring) and other types of placement of attracted funds. Therefore, bank loans are only a part of transactions that form the economic basis of banking operations for the placement of borrowed funds. The legal form of a bank loan is a loan agreement.
But, as already mentioned, the placement of funds is always associated with risk. Therefore, transactions for the placement of funds, and, above all, bank loans, are specially regulated by the norms of federal laws and regulations Bank of Russia. In particular, such norms are contained in the Federal Law "On Banks and Banking Activities" (Articles 24, 29, 30) * (311), in the Regulation of the Bank of Russia dated August 31, 1998 N 54-P "On the procedure for providing (placing ) by credit institutions of monetary funds and their return (repayment) "(as amended), in the Regulation of the Bank of Russia dated March 26, 2004 N 254-P" On the procedure for the formation by credit institutions of reserves for possible losses on loans, on loan and equivalent to it debt ". These regulations of the Bank of Russia regulate the technologies for placing funds of a credit institution and creating reserves.
2). Bank loan and other types of loans
Bank loan. In the Civil Code of the Russian Federation, a bank loan is one of the types of loans in general. It is issued only by a credit institution that has an appropriate banking license.
The Civil Code of the Russian Federation also regulates commercial loans. It also contains provisions on a commodity loan. No banking license is required for these loans.
There is no uniform classification in world practice bank loans, which, according to experts, is explained by the different level of economic development countries, different traditions and other factors. From an economic point of view, all loans are divided by groups of borrowers, according to intended purpose, by loan size, by maturity, by type of security, by method of provision, by order of repayment, by type interest rates, by methods of calculating interest rates, by loan currency, by the number of creditors. * (312)
Regulation of loans by means of banking law aims to direct the credit policy of a commercial bank in such a way that, on the one hand, the profitability of its banking operations increases, and on the other hand, so that the interests of the banking system as a whole, as well as the interests of banking clients... In this regard, it is important to understand the principles credit policy commercial bank.
According to G.S. Panova, the specific principles of the credit policy of a commercial bank are: profitability, profitability, safety and reliability. profits tend to infinity, and costs and risk - to a minimum. "* (314) From this point of view, both federal laws and regulations of the Bank of Russia adopted on their basis, in relation to a credit institution, are a kind of external constraint on its active operations. They are needed so that the policy of a credit institution does not become excessively risky.
A bank loan is provided on the basis of an agreement. In that sense, he's a bargain. The Bank of Russia has no right to interfere in these relations. He can only regulate banking operations, as a form of implementation of this transaction, as a technology for the issuance and repayment of a loan. * (315)
Commodity credit. In Art. 822 of the Civil Code of the Russian Federation provides that the parties can conclude an agreement stipulating the obligation of one party to provide the other party with things defined by generic characteristics (trade credit agreement). The rules of paragraph 2 of Ch. 42 of the Civil Code of the Russian Federation, that is, the same rules as for a bank loan, unless otherwise provided by a commodity loan agreement and does not follow from the essence of the obligation.
Conditions on the quantity, on the assortment, on the completeness, on the quality, on the packaging and (or) on the packaging of the items provided must be fulfilled in accordance with the rules on the contract for the sale of goods (Articles 465-485 of the Civil Code of the Russian Federation), unless otherwise provided by the contract of commodity credit.
The subject of this contract is things defined by generic characteristics. Any person can be its parties.
This agreement is usually, like any loan agreement, is onerous. * (316)
Commercial loan. In Art. 823 of the Civil Code of the Russian Federation stipulates that agreements, the execution of which is associated with the transfer of monetary amounts or other things determined by generic characteristics to the ownership of the other party, may provide for a loan, including in the form of an advance payment, prepayment, deferral and installments payment for goods, works or services (commercial credit), unless otherwise provided by law.
In part two of the same article, it is said that the rules of Chapter 42 of the Civil Code of the Russian Federation apply to a commercial loan, unless otherwise provided by the rules on the contract from which the corresponding obligation arose, and does not contradict the essence of such an obligation.
State and municipal loans. State and municipal loans are regulated by budget legislation.
3). Loan agreement
A bank loan agreement is a special case of an agreement bank loan provided for in Articles § 1 of Chapter 42 of the Civil Code of the Russian Federation. The norms of the Civil Code of the Russian Federation on a loan are applied to a loan agreement insofar as this, firstly, does not contradict the provisions enshrined in Articles § 2 of Chapter 42 of the Civil Code of the Russian Federation, and, secondly, does not contradict the essence of the loan agreement.
This is a consensual agreement. First, an agreement is concluded, and after that a loan is issued. On the contrary, a loan agreement is a real agreement: the moment the agreement is concluded coincides with the moment the money is transferred to the borrower.
The Civil Code provides that under the loan agreement, one party (the lender) transfers to the ownership of the other party (the borrower) money or other things defined by generic characteristics, and the borrower undertakes to return the same amount of money (loan amount) or an equal number of other things received by him to the lender of the same kind and quality.
Unlike a loan agreement, the subject of a loan agreement is only cash.
Under the loan agreement, the bank or other credit organization (lender) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount received and pay interest on it. The rules stipulated by paragraph 1 of Chapter 42 of the Civil Code of the Russian Federation apply to relations under a loan agreement, unless otherwise provided by the rules of paragraph 2 of Chapter 42 of the Civil Code of the Russian Federation and does not follow from the essence of the loan agreement. (Article 819 of the Civil Code of the Russian Federation). Therefore, the loan agreement is onerous.
Let's pay attention to the fact that in article 819 of the Civil Code of the Russian Federation there is no indication that the monetary amount of the loan is transferred to the ownership of the borrower. But this is stated in the article on the concept of a loan. Namely, part 1 of Article 807 "Loan Agreement" states that "under the loan agreement, one party (the lender) transfers to the ownership of the other party (the borrower) money or other things defined by generic characteristics, and the borrower undertakes to return the same amount to the lender. money (the amount of the loan) or an equal amount of other things he received of the same kind and quality. "
The form of the loan agreement is written. Unlike a loan, which under the conditions specified in the Civil Code of the Russian Federation can be written, for a loan agreement there is an established written form of the agreement. At the same time, it is not required that the contract must have a notarial form.
Failure to comply with the written form entails the invalidity of the loan agreement. Such an agreement is considered null and void.
Chapter 42 of the Civil Code of the Russian Federation does not indicate that interest should be indicated in the loan agreement. And in the absence of a condition on the amount of interest in the agreement, their amount is determined by the existing at the place of residence of the lender, and if the lender is a legal entity, at the place of its location by the bank interest rate (refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part. Unless otherwise agreed, interest is paid monthly until the day the loan amount is repaid.
True, article 30 of the Federal Law "On Banks and Banking Activities", in contrast to the Civil Code of the Russian Federation, stipulates that the agreement must indicate interest and some other conditions. In practice, this means that if, instead of interest, other types of loan payments are indicated, which sometimes occurs in the work of banks, then this can become a matter of dispute.
The borrower is obliged to return the received loan amount to the lender on time and in the manner stipulated by the loan agreement. In cases where the repayment period is not established by the agreement or is determined by the moment of demand, the loan amount must be returned by the borrower within thirty days from the date the lender submits a demand for this, unless otherwise provided by the agreement.
Unless otherwise provided by the loan agreement, the amount of the interest-free loan may be repaid by the borrower ahead of schedule. The loan amount provided at interest can be repaid ahead of schedule with the consent of the lender.
Unless otherwise provided by the loan agreement, the loan amount is considered returned at the time of its transfer to the lender or the transfer of the corresponding funds to his bank account.
Unless otherwise provided by law or the loan agreement, in cases where the borrower does not return the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Article 395 of this Code, from the day when it should have been returned until the day its return to the lender regardless of the payment of interest provided for by paragraph 1 of Article 809 of this Code.
Target loan. In relation to this loan, the provisions of Article 814 of the Civil Code of the Russian Federation apply. If the loan agreement is concluded with the condition that the borrower uses the funds received for certain purposes (targeted loan), the borrower is obliged to ensure that the lender can exercise control over the intended use of the loan amount.
Recognition of a loan agreement as a major transaction. When concluding a loan agreement, one should keep in mind the organizational and legal form of the borrower and the related restrictions in relation to large transactions. A loan agreement can be recognized as a major transaction if the amount of the loan provided under it and the interest stipulated by the agreement for using the loan (excluding interest for delayed loan repayment) is more than 25 percent book value property of the company.
Stock commercial Bank applied to an arbitration court with a claim against a limited liability company to recover the amount of debt under a loan agreement, as well as interest for using the loan and increased interest due to the non-repayment of the loan within the period stipulated by the agreement. The defendant filed a counterclaim on recognizing the loan agreement as invalid, indicating that the amount of the claims made by the plaintiff exceeds 25 percent of the book value of the company's property, and the director of the company concluding this loan agreement in the absence of a corresponding decision of the board of directors, or general meeting of participants in a limited liability company contradicts Article 46 of the Federal Law "On Limited Liability Companies" (hereinafter - the Law on Limited Liability Companies). The arbitration court satisfied the main claim of the joint-stock commercial bank and dismissed the counterclaim claimed by the defendant. At the same time, the court noted that the defendant unreasonably referred the loan agreement concluded by him to a major transaction, having determined its amount, proceeding not from the amount of the loan received under the agreement, but from the amount of claims declared by the plaintiff, which, along with the amount of the loan, included interest for using it and increased interest for non-repayment of the loan on time, which is a measure of responsibility for the delay in the fulfillment of a monetary obligation. When comparing the amount received by the defendant under the loan agreement with the data of the company's balance sheet as of the date of the transaction, the court established that it did not reach 25 percent of the book value of the company's property as of that date, and therefore recognized that general manager of the company had the right to conclude an agreement without obtaining the consent of the board of directors or the general meeting of the company's participants. The appellate instance rightfully canceled the decision, recognizing the loan agreement as a major transaction, taking into account the fact that the amount of the obligation under this agreement should be determined based not only on the amount of the loan received by the borrower, but also on the interest provided for by the agreement for using it during the period for which the loan was provided. At the same time, the court noted that the payment of the specified interest in accordance with Article 819 Civil Code Of the Russian Federation is part of the main obligation under the loan agreement. The total amount of the loan and interest for using it exceeded 25 percent of the book value of the company's property. When determining the amount of a transaction that can be attributed to a major one, the interest accrued for the delay in the fulfillment of a monetary obligation (Article 395 of the Civil Code of the Russian Federation), as well as other amounts charged from the debtor in the procedure for applying measures of responsibility to him ( forfeit, fine, interest). The interest stipulated by the credit agreement for using the credit during the period stipulated by the agreement is not a measure of responsibility and must be taken into account when determining the amount of the transaction. * (317)
In the process of concluding a loan agreement, the issue of the parties' powers to conclude the agreement should be taken into account. To this end, it is necessary to systematically study all the norms of various laws that are or may be related to this transaction, and it is also necessary to take into account the risk of interpretation of regulations. In addition, you should always check the legal capacity of the borrower. You must carefully familiarize yourself with its constituent documents.
Bill of exchange. In cases where, in accordance with the agreement of the parties, the borrower issued a bill of exchange, certifying the unconditional obligation of the drawer (promissory note) or another payer (bill of exchange) specified in the bill of exchange (bill of exchange) to pay the borrowed monetary amounts at the onset of the period provided for by the bill, the relations of the parties to the bill are regulated by law about a bill of exchange and a promissory note.
From the moment a bill of exchange is issued, the rules of the Civil Code of the Russian Federation can be applied to these relations insofar as they do not contradict the law on a bill of exchange and a promissory note (Article 815 of the Civil Code of the Russian Federation). The purpose is to formalize the fact of the postponement of the fulfillment of the monetary obligation (the fact of the provision of credit by the purchaser of the bill). * (318) That is why it is used as a means by which crediting of the borrower is carried out. A bill of exchange loan is a form of lending.
In the case of a promissory note, the loan is provided by the acquirer to the drawer. With the help of a bill, a loan is drawn up. This is the purpose of a promissory note.
The purpose of a bill of exchange is to arrange two loans and the fact that the drawer has transferred his own debt to the payer to the payer. The payer agrees (accepts) the transfer of the promissor's debt to it, depending on the state of other legal relations that served as the basis for issuing a bill of exchange. * (319) In the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 25, 1997 N 18 "Review of the practice disputes related to the use of a bill in economic turnover", in particular (clause 18) it is said that the person to whom the promissor of the promissory note is instructed to make the payment is not obligated by the promissory note. In accordance with the agreement, the organization-promissor of the promissory note instructed the bank servicing it to make payments on the promissory notes issued by it at the expense of The promissory note included a record that the payment must be made at the bank at the location of the drawer's current account. When the payment came due, the drawer applied to the indicated bank with a demand to pay the promissory note. The bank refused to pay due to lack of funds At the request of the holder of a bill of exchange, the bill holder filed a complaint with the arbitration court against the bank, which was instructed to make payments, to recover the bill of exchange, as well as interest, penalties and costs of the protest in accordance with Article 48 Provisions on bills of exchange and promissory notes. He satisfied the claims, since the bank's obligation to pay on the promissory note follows from the instructions in the promissory note that the payment is made by this bank and the fact of the bank's refusal to pay the promissory note is documented. According to the court, this decision was made in violation of substantive law. The person indicated by the drawer, on whom he imposes the obligation to pay the bill, is not the person who, by virtue of Article 47 of the Regulations, is responsible for paying the bill to the holder of the bill. Such responsibility is borne by the drawer himself, who has appointed an authorized person for payment. Based on the stated by the decision of the cassation instance the decision was canceled and the claim was rejected. * (320)
It should be borne in mind that banks use various schemes for using promissory notes in lending to their customers. One of the ways of lending is a bill of exchange loan.
Bond. In cases stipulated by law or other legal acts, a loan agreement may be concluded by issuing and selling bonds.
A bond is a security that certifies the right of its holder to receive from the person who issued the bond, within the period stipulated by it, the par value of the bond or other property equivalent. A bond also grants its holder the right to receive a fixed percentage of the bond's par value or other property rights.
The loan rules are applied to the relationship between the person who issued the bond and its holder insofar as otherwise is not provided for by law or in the manner prescribed by it (Article 816 of the Civil Code of the Russian Federation).
4). Ensuring loan repayment
Securing loans is, to one extent or another, regulated by the rules of banking and civil law.
Article 33 of the Federal Law "On Banks and Banking Activities" states that "loans provided by a bank may be secured by a pledge of real estate and movable property, including government and other securities, bank guarantees and other methods provided for by federal laws or an agreement. If the borrower violates the obligations under the agreement, the bank has the right to collect the loans provided and the interest accrued on them ahead of schedule, if provided for by the agreement, as well as to foreclose on the pledged property in accordance with the procedure established by federal law. "
The Civil Code of the Russian Federation provides for various methods of securing loans.
Article 329 of the Civil Code of the Russian Federation provides that the fulfillment of obligations may be secured by a forfeit, pledge, retention of the debtor's property, surety, bank guarantee, deposit and other methods provided for by law or agreement. All these methods of ensuring the fulfillment of obligations have their own characteristics that must be taken into account in relation to specific situation... Most often, in practice, a penalty, pledge, surety and bank guarantee are used.
Credit institutions practice creating different ways securing a loan and protecting one's interests (compensation, debt forgiveness, innovation).
The general points characterizing the choice of one or another method of securing the loan repayment are that it is necessary to carefully analyze the legislation, take into account legal risks and pay attention to the legal status of the borrower or third party providing the loan security.
Penalty. A forfeit (fine, penalty interest) is a sum of money determined by law or by an agreement, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment. Upon a claim for payment of a penalty, the obligee is not obliged to prove the damage caused to him. The forfeit agreement must be in writing.
The penalty may be reduced by the court if it is recognized as disproportionate. The legitimacy of such a possibility was confirmed by the Constitutional Court of the Russian Federation, which indicated that “in accordance with Article 330 of the Civil Code of the Russian Federation, a forfeit is a sum of money determined by a law or an agreement, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of an obligation, in particular, delay in fulfillment. Article 333 of the Civil Code of the Russian Federation, if the penalty to be paid is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty (part one); at the same time, the rules on the possibility of reducing the penalty do not affect the creditor's right to compensation for losses (part two). Thus, the civil legislation provides forfeit as a way to ensure the fulfillment of obligations and a measure of property liability for their failure to perform or improper performance, and the right to reduce the amount of the forfeit was granted to the court in order to eliminate its obvious disproportionate consequences m violation of obligations ". * (321)
Pledge. The pledge agreement is governed by the Civil Code of the Russian Federation and the Federal Law "On Pledge".
The pledge, as a way of securing the fulfillment of obligations, has certain advantages and disadvantages. One of them is that not all property can be pledged. Moreover, the prohibitions are contained in regulations that have a different industry affiliation. For example, Article 51 of the Fundamentals of the Legislation of the Russian Federation on Culture says that "cultural values stored in state and municipal museums, art galleries, libraries, archives and other government organizations culture, cannot be used as collateral for a loan or lent on pledge. " closed type companies. Here the right of pre-emptive purchase of shares and shares is essential. It complicates the use of collateral to secure the repayment of the loan. State and municipal unitary enterprises are also specific.
The founders of business companies and partnerships have rights of obligation and therefore only they can be pledged, and not a share of the property.
Each subject of pledge is specific. For example, legal regime use of goods in circulation and real estate is different. * (323) If real estate becomes the subject of pledge, then it is necessary to take into account the requirements of the Federal Law "On mortgage (pledge of real estate)". Article 19 of the said law provides that the mortgage is subject to state registration institutions of justice in a single state register rights to real estate in accordance with the procedure established by the federal law on state registration of rights to real estate and transactions with it. Here it is also necessary to take into account the norms of the Federal Law of July 21, 1997 "On state registration of rights to real estate and transactions with it." * (324)
Thus, when applying this method of securing a loan, you need to take into account all the positive and negative aspects. The feasibility of its application depends on the specific situation. Factors such as the cost and liquidity of the collateral, the amount, terms and interest on the loan, as well as the economic content of the loan, and the assessment of emerging risks are of no small importance. It is also important that in some cases the subject of the pledge needs to be stored, which is associated with different costs.
In all cases, it is necessary to carefully study the charter of the organization. In this case, it is necessary to take into account the requirement of the legislation on joint stock companies, in particular with regard to the powers to conclude large transactions, which in some cases (a large transaction, if it is from 25 to 50% balance sheet assets on the date of its execution), and in others (if the transaction is more than 50% of the balance sheet assets) require the consent of the board of directors of the pledger.) * (325) The charter of a limited liability company, an additional liability company may stipulate the impossibility of alienating a share to third parties, in this case, a credit institution. There may also be some other restrictions that make the pledge of the right of claim unprofitable for the credit institution.
The negative aspects of this method of securing loans are mainly reduced to the difficulties in selling collateral (Articles 349-350 of the Civil Code of the Russian Federation).
Items specified in the list of types of property of citizens, on which execution cannot be levied under executive documents, cannot be pledged.
According to the Civil Code of the Russian Federation (part one) of November 30, 1994, the property contained in the list provided for in Appendix No. 1 to the Civil Procedure Code of the RSFSR * (326) cannot be a subject of pledge (see also the Law of the Russian Federation of May 29, 1992 g. "On the pledge").
It should be borne in mind that in Article 49 of the Federal Law of July 21, 1997 "On enforcement proceedings"it is envisaged that the pledged property may be foreclosed if the debtor does not have enough other property to fully satisfy the claims presented to him that are not secured by the pledge, in compliance with the rights of the pledgee established by the civil legislation. advantage over his claim, from the value of the pledged property in an amount not exceeding the value of this property.This is another factor that increases the risk of collateral for the loan.
According to the Civil Code of the Russian Federation, claims secured by a pledge are satisfied in the third priority. This means that in the liquidation of a legal entity, creditors cannot foreclose on the pledged property until the claims of the first and second stages are fully satisfied. In the Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 in paragraph 25, this issue is explained as follows: was the subject of a pledge, is subject to inclusion in the general bankruptcy estate, and the claims of the creditor-pledgee are satisfied at the expense of all the debtor's property remaining after the satisfaction of the claims of creditors of the first two stages, including those that are not the subject of pledge. "
Assessment of collateral. The assessment of the pledge is carried out according to the rules established by the Federal Law of July 29, 1998 "On appraisal activity in the Russian Federation." * (327) This law formulates the concept of appraisal activity. The article provides that for the purposes of the said Federal Law, the appraisal activity is understood as the activity of the subjects of appraisal activity aimed at establishing the market or other value in relation to the objects of appraisal. In this case, the market value of the appraised object is understood as the most probable price at which this appraisal object can be alienated in the open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and no extraordinary circumstances are reflected in the value of the transaction price ... Along with this, it is essential that one of the parties to the transaction is not obliged to alienate the subject of valuation, and the other party is not obliged to accept performance; the parties to the transaction are well aware of the subject of the transaction and act in their own interests; the subject of assessment is presented on open market in the form of a public offer; the price of the transaction is a reasonable remuneration for the object of assessment and there was no coercion to complete the transaction in relation to the parties to the transaction from any party; the payment for the subject matter is expressed in monetary terms.
According to Article 5 of the Federal Law of July 29, 1998 "On Appraisal Activity in the Russian Federation", the appraisal objects include: individual material objects (things); a set of things that make up the property of a person, including property of a certain type (movable or immovable, including enterprises); ownership and other property rights to property or individual things from the composition of the property; rights of claim, obligations (debts); works, services, information; other objects of civil rights, in respect of which the legislation of the Russian Federation establishes the possibility of their participation in civil circulation.
The same law provides that if in the regulatory legal act, containing the requirement of mandatory appraisal of any appraisal object, or in the contract on appraisal of the appraisal object (hereinafter referred to as the contract) a specific type of value of the appraised object is not defined, the market value of this object is to be established.
This rule shall also be applied in the case of the use in a regulatory legal act of terms not provided for by this Federal Law or valuation standards that determine the type of value of the valuation object, including the terms "actual value", "reasonable value", "equivalent value", "real value "and others.
The law provides for cases when the assessment of objects is mandatory. In particular, this concerns mortgage lending individuals and legal entities in cases of disputes about the value of the subject of the mortgage.
The development and approval of valuation standards, mandatory for use by the subjects of valuation activities, is the competence of the Government of the Russian Federation in accordance with the legislation of the Russian Federation. Appraisal activity is classified as licensed. * (328)
Retention of the debtor's property. In relation to the implementation of this type of loan security, the same procedure is applied as in relation to collateral.
A surety. A surety agreement is an agreement between a creditor and a surety. It is a unilaterally binding, consensual and non-repayable contract.
This contract can also be concluded to secure an obligation that will arise in the future. He must have writing, non-observance of which entails the invalidity of the surety agreement.
In the event of non-performance or improper performance by the debtor of the obligation secured by the surety, the surety and the debtor shall be jointly and severally liable to the creditor, unless the law or the contract of surety provides for subsidiary liability of the surety. In this case, the surety is liable to the creditor in the same amount as the debtor, including the payment of interest, reimbursement of legal costs to collect the debt and other losses of the creditor caused by non-performance or improper performance of the obligation by the debtor, unless otherwise provided by the surety agreement. The jointly sponsored persons shall be jointly and severally liable to the creditor, unless otherwise provided by the surety agreement. This agreement should not be confused with all sorts of letters of recommendation, certificates of solvency and other similar documents that do not contain an agreement between the creditor and the surety, that is, they are not a surety. The wording of the contract must correspond exactly to its substance. Provisions regarding the legal capacity of guarantors and the authority to carry out major transactions should be checked for compliance with the legal requirement in relation to the legal status of the organization and its charter.
5). Responsibility of the parties under the loan agreement
The liability of the parties under the loan agreement is provided for by civil and banking legislation.
When concluding a contract, the parties provide for measures of responsibility in the event of its failure, guided by the norms of civil law.
The loan agreement of the loan in whole or in part in the presence of circumstances clearly indicating that the amount provided to the borrower will not be returned on time. Since the Civil Code of the Russian Federation says that such circumstances must be obvious, then, therefore, there must be direct evidence indicating that the amount will not be returned within the period provided for by the contract.
The loan is subject to general rule loan, that if the loan agreement provides for the return of the loan in parts (in installments), then if the borrower violates the period established for the return of the next part of the loan, the lender has the right to demand early return of the entire remaining amount of the loan, together with the interest due. * (329) If the borrower fails to fulfill the obligations stipulated by the loan agreement to ensure the repayment of the loan amount, as well as in case of loss of security or deterioration of its conditions due to circumstances for which the lender is not responsible, the lender has the right to demand from the borrower an early return of the loan amount and payment of due interest, unless otherwise provided by the contract.
If the borrower does not fulfill the terms of the loan agreement on the targeted use of the loan amount, as well as in violation of the borrower's obligations to ensure the ability of the lender to exercise control, the latter has the right to demand from the borrower an early repayment of the loan amount and payment of the interest due, unless otherwise provided by the agreement.
The Federal Law "On Banks and Banking Activities" contains provisions that are addressed to a credit institution. Article 34 of this law says that a credit institution is obliged to take all measures provided for by the legislation of the Russian Federation to collect debts.
The credit organization has the right to apply to the arbitration court with an application to initiate proceedings in the case of insolvency (bankruptcy) in respect of debtors who do not fulfill their obligations to repay the debt, in the manner established by federal laws. * (330)
6). Regulation by the Bank of Russia of operations for the provision (placement) of funds by credit institutions and their return (repayment)
Banking operations for the placement of funds by credit institutions are regulated by the regulations of the Bank of Russia. In the Regulation of the Bank of Russia of August 31, 1998 N 54-P "On the procedure for the provision (placement) of funds by credit institutions and their return (repayment)" (as amended by the Regulation, approved by the Central Bank of the Russian Federation on July 27, 2001 144-P) * (331) (hereinafter referred to as the Regulation). True, the Regulation provides for the procedure for placing funds in relation to a bank loan, and it does not apply to other banking operations for placing funds. In particular, it does not apply to operations with precious metals and operations with securities.
The Regulation indicates the limits of its validity. It does not apply to legal relations between the Bank of Russia and banks for the placement of funds. These legal relationships are governed by the legislation of the Russian Federation and the relevant regulations of the Bank of Russia. It also does not regulate legal relations for opening and maintaining bank accounts of bank customers. The Regulation does not regulate operations for the provision (placement) of funds by banks, carried out using bank plastic cards of the bank * (332), as well as bank operations for placing bank funds in securities (bonds, certificates of deposit, bills of exchange and others debentures issuers). These operations are regulated by the legislation of the Russian Federation and the relevant regulations of the Bank of Russia. * (333)
It establishes the procedure for the implementation of operations for the provision (placement) of funds by banks to legal entities and individuals, regardless of whether or not they have settlement, current, deposit, correspondent accounts with this bank, and the return (repayment) of funds received by the clients of banks, and also accounting of the specified operations. * (334) In fact, this is the regulation of the technology of one of the main banking operations - bank lending.
The Regulation notes that before the bank makes a decision on the advisability of providing funds to the client, the creditor bank should carefully study all documents submitted by the borrower (copies of constituent documents, accounting, statistical and financial statements (balance sheet and annexes to it, decryption selected indicators activity); business plan, marketing, production and management plans, forecast cash flows the borrower with his counterparties for the period of repayment of the funds provided (schedule of receipts and payments of the client-borrower); a feasibility study characterizing the payback period and the level of profitability of the loaned transaction), as well as check the reliability of the loaned transactions, study the credit history of the client-borrower, analyze the issue of the presence or absence of debt on the obligations of the client-borrower, including overdue, check the authority officials of the client-borrower signing an agreement for the provision of funds, check the availability and quality of collateral (collateral, bank guarantee, surety, insurance policy, etc.), evaluate the information received.
If the client-borrower is not served in a potential lending bank (i.e. does not have a correspondent, current, current account in it), then in addition to the above documents and information, he should receive a card of samples of signatures of persons authorized to sign the relevant agreements / agreements with the bank and manage the funds of the borrowing organization.
The Regulation, in particular, says that before making a decision on the advisability of providing funds, it is necessary to organize and conduct interview meetings with potential borrower jar. These interviews with the borrowing client should be carried out on a regular basis and thereafter throughout the term of the contract.
The Regulation says that the decision on the provision of funds is recommended to be made on the basis of an analysis financial condition the borrower; the level of his credit solvency; the quality and liquidity of the collateral offered by the borrower; calculating the sufficiency of the provided security for the funds to be placed, taking into account the interest due and the possible costs of the creditor bank upon receipt of performance; assessing the risks associated with lending to a specific client (especially when providing blank loans), including analysis credit risk, currency risk (when providing funds in foreign currency), industry risk (analyzing the state of the industry to which the borrower belongs) and other risks. After the decision on the provision of funds is made by the authorized specialists of the creditor bank, the text of the agreement is prepared.
The Regulation states that the execution of a transaction for the provision of funds is carried out by concluding an appropriate agreement between the bank and the client of the bank (general loan agreement / agreement, loan agreement / agreement, deposit agreement, loan agreement, bank account agreement, another agreement for the placement of funds, drawn up taking into account the requirements of the Civil Code of the Russian Federation). The agreement / agreement defines the main conditions for the provision and return (repayment) of the funds placed by the bank. In this case, the loan agreement may define the purposes for which the loan is provided.
All documents submitted by the client-borrower, responses to the requests of the creditor bank received by the creditor bank, as well as documents confirming the fact of placement (provision) of funds, including an agreement / agreement, additional agreements to it, pledge agreements and other agreements and copies of orders are kept in the borrower client's file maintained by the creditor bank.
The document confirming the fact of providing funds to the client is an extract from the client's correspondent, current, current account, as well as a loan or interbank deposit account or an account for accounting for other allocated funds.
The bank determines the procedure for the formation of client dossiers-borrowers and organizes their storage for at least 5 years, and after the expiration of the established storage periods, transfers them to the archive, where the client files are stored in the prescribed manner. This work is carried out under the guidance of the chief accountant and the head of the relevant department of the bank, whose competence includes placing funds with clients.
One of the conditions of the loan agreement should provide for the bank's right to terminate the loan agreement ahead of schedule in the event that the client-borrower violates the obligations stipulated in the loan agreement. The client-borrower may also be granted the right by agreement, for justified reasons, not to use the loan (credit line) in whole or in part. The originally agreed amount of the loan (credit line) may subsequently also be adjusted by the parties (this condition should be stipulated in the loan agreement).
In accordance with the terms of the concluded agreement / agreement, the bank places funds with the bank's clients. At the same time, the opening of the corresponding loan and interbank deposit accounts, accounts for accounting for other placed funds is accompanied by a notification tax authorities according to established order.
As one of the examples of the placement (provision) of funds on a syndicated (consortium) basis, the participation of a bank in an amalgamation (consortium) of several banks to provide a large loan to one client-borrower on the basis of an agreement between creditor banks on the provision of a loan on a syndicated (consortium) basis can be considered. ) based on the client-borrower and the corresponding loan agreements concluded by each of these banks-creditor with the client-borrower.
As stated in the Regulations, the authorized division of the bank should organize daily monitoring of the maturity (return) of the borrowing clients of the funds provided to them and the payment of interest on them, including the state of overdue debt on loans of borrower clients, and take the necessary measures to ensure it. repayment.
The regulation provides * (335) that "the placement (provision) of funds by the bank means the conclusion between the bank and the bank's client of an agreement drawn up taking into account the requirements of the Civil Code of the Russian Federation." In accordance with Article 1 of the Federal Law "On Banks and Banking Activities", the bank transfers funds on the terms of payment, urgency and repayment, and the bank's client returns the funds received in accordance with the terms of the agreement. "
Note that by pointing out the concept of placing funds in this way, the Regulations mean a transaction between a credit institution and its client as the basis for the procedure for carrying out a banking operation regulated by it. But it does not regulate the transaction as such, but only regulates the technology of the credit institution's activities for the placement of funds, that is, the banking operation.
Placement (provision) of funds can be carried out both in national currency Of the Russian Federation and foreign currencies in compliance with the requirements of the current legislation.
The bank is obliged to develop and approve the relevant internal documents defining its policy for the placement (provision) of funds, as well as accounting policy and approaches to its implementation. He must develop and approve the following documents: a) documents defining the procedures for making decisions on the placement of funds by the bank; b) documents defining the distribution of functions and powers between divisions and officials of the bank, b) documents including internal rules for the allocation of funds, including the rules for lending to bank customers. Their content must not contradict current legislation Of the Russian Federation, regulations of the Bank of Russia and Regulations.
Another point that should be taken into account when making a decision by a credit institution to issue a loan is the requirements of the Bank of Russia in relation to the so-called tied lending.
In the Letter of the Bank of Russia, Letter of the Bank of Russia dated January 17, 2005 No. 2-T "On making transactions with persons related to the bank and assessing the risks arising from their execution", nevertheless, along with banking regulations, the norms of civil law are also contained, which, in our opinion, is unacceptable.
Apparently, such issues are important, but they need to be resolved not by the regulations of the Bank of Russia, but by federal law. Indeed, according to the norms of the Civil Code of the Russian Federation, the competence of the general meeting of shareholders (participants) or the board of directors (supervisory board) of a company, in relation to credit agreements of banks, includes only issues of approving large transactions and transactions in which there is an interest.
As for other issues, they can be attributed to the jurisdiction of the board of directors (supervisory board) by limiting the competence of the executive body, but only to the extent permitted by law. And the Bank of Russia is not entitled to establish the norms of civil law, including regulating the competence of the general meeting of shareholders / participants, the board of directors of a credit institution. Here, too, as we see, among other things, there is a mixture of banking and civil legal relations.
An essential element of a banking transaction for the placement of funds is risk management and the creation of reserves. The Bank of Russia Instruction No. 110-I of January 16, 2004 "On Mandatory Bank Ratios" (as amended) provides for a number of standards that are designed to limit credit risks. The standards are calculated according to the formulas that are given in the same normative act.
In accordance with the norms provided for in the Federal Law "On Banks and Banking Activities" (Article 24), in order to ensure financial reliability, a credit institution is obliged to create reserves (funds), including for the depreciation of securities, the procedure for the formation and use of which is established Bank of Russia. Minimum dimensions reserves (funds) are established by the Bank of Russia. The amounts of deductions to reserves (funds) from profit before taxation are established by federal laws on taxes. * (336)
A credit institution is obliged to classify assets, highlighting doubtful and bad debts, and create reserves (funds) to cover possible losses in the manner established by the Bank of Russia.
The credit institution is obliged to comply with the mandatory standards established in accordance with the Federal Law "On The central bank Of the Russian Federation (Bank of Russia) ", the numerical values of which are established by the Bank of Russia in accordance with the Federal Law.
The credit institution is obliged to organize internal control to ensure an appropriate level of reliability corresponding to the nature and scale of operations. * (337)
7). Creation of provisions for possible losses on loans, loan and equivalent indebtedness
The procedure for creating reserves for loans provided for by the Federal Law is regulated by the Regulation of the Bank of Russia dated March 26, 2004 N 254-P "On the procedure for the formation by credit institutions of reserves for possible losses on loans, on loan and equivalent debt" (as amended by the Directive of the Bank of Russia RF of 20.03.2006 N 1671-U) (hereinafter - the Regulation).
This Regulation establishes the procedure for the formation by credit institutions of reserves for possible losses on loans, on loan and equivalent indebtedness (hereinafter referred to as loans), which include monetary claims and claims arising from transactions with financial instruments. A list of them is given in Appendix 1 to this Regulation.
In addition, the Regulation provides for the specifics of the Bank of Russia overseeing compliance by credit institutions with the procedure for creating reserves for possible loan losses.
Banks have the right, in addition to reserves for doubtful debts provided for in article 266 of the Tax Code of the Russian Federation, to create a reserve for possible losses on loans, on loan and equivalent debt (including debt on interbank loans and deposits). * (338)
The amounts of deductions to reserves for possible loan losses, formed in this manner, in accordance with the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", are recognized as an expense subject to the restrictions provided for by the same article. Accordingly, the Tax Code also contains article 292 "Expenses for the formation of banks' reserves".
The amounts of deductions to the reserve for possible losses on loans, formed taking into account the provisions of paragraph 1 of this article, are included in non-operating expenses during the reporting (tax) period.
The amounts of provisions for possible losses on loans, attributed to the bank's expenses and not fully used by the bank in the reporting (tax) period to cover losses on bad debt for loans and debt equated to a loan, can be carried over to the next reporting (tax) period. In this case, the amount of the newly created reserve must be adjusted by the amount of the reserve balances of the previous reporting (tax) period. If the amount of the newly created reserve in the reporting (tax) period is less than the amount of the balance of the reserve of the previous reporting (tax) period, the difference shall be included in non-operating income bank on the last day of the reporting (tax) period. If the amount of the newly created reserve is greater than the amount of the balance of the reserve of the previous reporting (tax) period, the difference shall be included in non-operating expenses banks on the last day of the reporting (tax) period.
The Regulation contains a number of changes that distinguish it from the previously valid Instruction No. 62a. The most significant are the following:
1) the list of loans, loan and equivalent indebtedness has been expanded, the possible losses for which are the object of the formation of reserves.
The list of loans includes claims of a credit institution for rights (claims) acquired under a transaction (assignment of claim); on mortgages acquired in the secondary market. The same list includes requirements for transactions of sale (purchase) of financial assets with a deferred payment (delivery of financial assets); on paid letters of credit (in terms of uncovered export and import letters of credit). It also includes requirements for the counterparty for the return of funds under the second part of the transaction for the purchase of securities or other financial assets with the obligation to re-alienate them if the securities that are the subject of this transaction are unquoted in accordance with the regulations of the Bank of Russia (not circulate on the organized market); for operations of financial lease (leasing);
2) five classification categories of quality are established
3) a requirement is established to assess the credit risk for loans issued on an ongoing basis;
4) establish the framework requirements for the internal documents of the credit institution on the classification of loans and the formation of the reserve;
5) set "fork" rates of deductions to the reserve, which allows credit institutions to more accurately assess losses on loans;
6) it is provided that for loans attributed to the first quality category (standard loans), a reserve in mandatory not formed;
7) an approach based on professional judgment is envisaged as the main one in assessing the quality of loans and determining the amount of reserves. It is envisaged that professional judgment is made based on the results of a comprehensive and objective analysis of the borrower's activities, taking into account his financial situation, the quality of service by the borrower of the debt under the loan, as well as all information at the disposal of the credit institution on other aspects of the borrower's activities;
9) a list of loans is established, for which, first of all, control over the correctness of their assessment and determination of the amount of reserves within the framework of the internal control system is carried out;
10) a list of loans is established that cannot be classified better than in quality categories II and III;
11) the framework requirements for the formation of reserves for the portfolio (portfolios) of homogeneous loans are determined;
12) the concepts of I and II quality categories of loan collateral are introduced, which are used for the formation of reserves, a list of types of collateral that can be attributed to collateral I and II quality categories is determined, and the procedure for the formation of a reserve for loans, taking into account the specified collateral, is established;
13) the procedure for writing off unrecoverable loans, especially small ones, as well as homogeneous loans combined into a portfolio, is somewhat simplified at the expense of the formed reserve;
For the purpose of determining the size of the estimated allowance due to the influence of factors of credit risk, loans are classified on the basis of professional judgment into one of five quality categories:
Quality category II (non-standard loans) - moderate credit risk (the likelihood of financial losses due to default or improper performance by the borrower of obligations under the loan determines its impairment in the amount of one to 20 percent);
Quality category III (doubtful loans) - significant credit risk (the likelihood of financial losses due to default or improper performance by the borrower of obligations under the loan causes its impairment in the amount of 21 to 50 percent);
IV quality category ( problem loans) - high credit risk (the likelihood of financial losses due to non-performance or improper performance by the borrower of obligations under the loan determines its impairment in the amount of 51 percent to 100 percent);
V (lowest) quality category (bad loans) - there is no possibility of loan repayment due to the inability or refusal of the borrower to fulfill the loan obligations, which leads to a complete (in the amount of 100 percent) impairment of the loan.
The provision is formed within the amount of the principal debt (the book value of the loan). The principal amount does not include: payments due to law, business customs or an agreement in the form of interest for the use of a loan, commissions, penalties, as well as other payments to a credit institution arising from the agreement (hereinafter - interest on a loan).
The reserve is formed in the currency of the Russian Federation, regardless of the currency of the loan.
The requirements of this Regulation do not apply to:
financial assets recorded in accounting at market value, at which revaluation is carried out in accordance with the regulations of the Bank of Russia;
financial assets that are elements of the calculation base in accordance with the Regulation of the Bank of Russia dated July 9, 2003 N 232-P "On the procedure for the formation of reserves for possible losses by credit institutions." The procedure for the formation of a reserve in relation to residents of offshore zones is also provided. * (339)
V Tax Code The Russian Federation has article 292 "Expenses for the formation of banks' reserves". It provides that banks have the right, in addition to reserves for doubtful debts provided for in Article 266 of the Code, to create a reserve for possible losses on loans on loan and equivalent debt (including debt on interbank loans and deposits.
The amounts of deductions to reserves for possible loan losses, formed in the manner established by the Central Bank of the Russian Federation in accordance with the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", are recognized as an expense subject to the restrictions provided for in this article of the Tax Code of the Russian Federation.
In determining tax base Expenses are not taken into account in the form of deductions to reserves for possible loan losses formed by banks for debt referred to as standard, in the manner established by the Central Bank of the Russian Federation, as well as in reserves for possible loan losses formed against bills of exchange, with the exception of those recorded by banks bills of exchange of third parties, on which a protest of non-payment has been made.
The amounts of deductions to the reserve for possible losses on loans are included in non-operating expenses during the reporting (tax) period.
The amounts of provisions for possible losses on loans attributed to the bank's expenses and not fully used by the bank in the reporting (tax) period to cover losses on bad debts on loans and debt equated to a loan may be carried over to the next reporting (tax) period. In this case, the amount of the newly created reserve must be adjusted by the amount of the reserve balances of the previous reporting (tax) period. If the amount of the newly created reserve in the reporting (tax) period is less than the amount of the balance of the reserve of the previous reporting (tax) period, the difference shall be included in the bank's non-operating income on the last day of the reporting (tax) period. If the amount of the newly created reserve is greater than the amount of the balance of the reserve of the previous reporting (tax) period, the difference shall be included in the non-operating expenses of banks on the last day of the reporting (tax) period.
I. The market for banking services attracting funds are represented by the following banking services specified in the Banking Law:
a) attracting funds from individuals and legal entities in deposits (on demand and for a specified period);
b) attraction of deposits and placement of precious metals;
c) trust management of funds and other property under an agreement with individuals and legal entities.
In banking terminology, services for raising funds are usually called passive operations.
A) Terms of attraction den of funds - urgency, repayment and chargeability. Legally banking operations to raise funds are drawn up by agreements bank deposit and a number of agreements related to the placement of its own securities by the bank.
The content of the bank deposit agreement is bank duty to accept from the depositor the amount of money on the conditions stipulated by the contract, return its depositor at his request (for demand deposits) or upon the expiration of the deposit term or the occurrence of an event stipulated by the contract (for time deposits) and pay off established in the contract interest.
In banking practice, it is customary to conclude a bank deposit agreement with individuals, and a deposit agreement with legal entities, although the Civil Code of the Russian Federation does not distinguish between a deposit and a bank deposit agreement. but legislative regulation a bank deposit agreement (deposit) concluded by a bank with a legal entity and an individual has a number of significant differences aimed at providing individuals with additional guarantees in bank deposit agreements. For example, if a bank deposit agreement is concluded with an individual for a certain period, then the depositor has the right to receive the deposit amount ahead of schedule, and the limitation of this right in the agreement is invalid(Clause 2 of Article 837 of the Civil Code of the Russian Federation). With regard to the deposits of legal entities, the agreement may provide (and, as a rule, does) prohibit their early withdrawal. A bank deposit agreement with an individual is recognized public contract(Clause 2 of Article 834 of the Civil Code of the Russian Federation). The right to attract deposits from individuals belongs to banks that have received a special permit (license) from the Bank of Russia and no earlier than two years after the date of state registration of the bank(part 3 of article 36 of the Banking Law). When bankruptcy of the bank claims of depositors - individuals are satisfied in the first place(Clause 1, Article 49 of the Federal Law "On Insolvency (Bankruptcy) of Credit Institutions"). In addition, the relations of the parties under a bank deposit agreement concluded with a citizen are subject to provisions of the Consumer Protection Law. In the future, bank deposit agreements with individuals will be referred to as "deposits", and with legal entities - "deposits".
Deposits and deposits are accepted by banks for a certain period (term deposits) and on terms of payment on demand (demand deposits).
The bank charges interest on the amount of the deposit (deposit) in the amount and in the manner established by the agreement. If the amount of interest is not established by the agreement, the bank pays interest in the amount of the discount rate of the Central Bank of the Russian Federation (clause 1 of article 838 of the Civil Code of the Russian Federation). If a different frequency of interest payments on a deposit is not established by the agreement, the bank pays interest on a quarterly basis separately from the deposit amount, and interest unclaimed by the depositor is added to the deposit amount (capitalized) (clause 2 of Article 838 of the Civil Code of the Russian Federation). Unless otherwise provided by the agreement, interest for the first and last day of the deposit is not calculated.
Unlike a loan agreement, which in practice is usually issued when collateral is provided (pledge, guarantee, surety, etc.), deposits and deposits are usually attracted by banks without providing security... Meanwhile, the Civil Code of the Russian Federation stipulates that "banks are obliged to ensure the return deposits of citizens by way compulsory insurance"(Article 840), but the law defining the procedure for compulsory insurance of deposits of citizens has not yet been adopted. For deposits of citizens in banks in the authorized capital of which the state, constituent entities of the Russian Federation, municipalities prevail, they bear subsidiary liability, i.e. e. undertake to pay depositors the amount of obligations of such banks on deposits not paid by the banks themselves (clause 1 of article 840 of the Civil Code of the Russian Federation).
Deposits attracted by banks from other banks, can be equally attributed to both deposits and a loan agreement, since in such transactions both the creditor and the debtor are represented by a credit organization. In practice, such agreements are usually called interbank agreements... In banking terminology, the interbank market short-term loans that do not provide for a delay in the moment of granting a loan is called the "depot" market.
The same as when a bank accepts deposits and deposits, when banks issue and distribute (place) their own securities - bonds, savings (deposit) certificates, bills- banks attract funds from individuals and legal entities on the terms of urgency, repayment and payment. Bank issue shares and their placement can be attributed to the services of banks to raise funds only in part (they do not have guarantees of income; the main value of shares for investors is not in possible dividends, but in the right to participate in the management of the bank; the right to receive only the liquidation value of their shares and in case of bank insolvency, they will probably lose their investments).
· Bonds- these are equity securities securing the rights of their owners to receive bonds from the issuer within the specified period of their par value or other property equivalent. In essence, the content of the relationship between the owner of the bond and its issuer is the relationship of the loan. Release bank bonds is registered by the Bank of Russia. In practice, bank bonds are used relatively rarely.
If with the help of bonds a loan agreement can be drawn up, then with the help of savings (deposit) certificate a bank deposit agreement is drawn up. A savings (deposit) certificate is a security that certifies the amount of the deposit made to the bank and the rights of the certificate holder to receive the deposit amount and the interest in the bank specified in the certificate after the expiration of the specified period. Savings (deposit) certificates are divided into registered and bearer... The circulation of certificates of deposit denominated in foreign currency is limited, since such certificates are related to currency values by virtue of the Law on currency regulation... The relationship between the holder of a savings (deposit) certificate and the bank that issued it applies bank deposit agreement rules.
· Bank bills occupy a special place in the banking services market. A bill of exchange, unlike a savings (deposit) certificate, does not execute any other agreement, but certifies unconditional obligation the drawer to pay the sum of money indicated in the bill of exchange when the period stipulated by the bill of exchange comes. In Russian banking practice, they usually use promissory notes(solo). A bill of exchange may provide for the payment of interest on the bill (interest bills) or only the bill of exchange ( discount bills), a bank bill of exchange can serve as a subject of pledge, can be provided as a compensation to the creditor of the bill holder, etc. The circulation of bank bills, as well as bills of exchange of other issuers, is regulated by special legislation ( Federal Law of March 11, 1997 N 48-FZ "On bills of exchange and promissory notes").
B) Precious metals are classified by legislation as currency values and from an economic point of view represent a special kind of asset, as market prices for precious metals are subject to less significant fluctuations than other assets. These services are provided by banks on the basis of metal account agreements, which are not named either in the Civil Code of the Russian Federation, or in the Federal Law "On Precious Metals and Precious Stones", or in other legislative acts... Regulatory legal regulation of the metal accounts regime is carried out exclusively on sub-legal level. Metal accounts are understood as accounts opened by credit institutions for clients to carry out operations with precious metals... Moreover, such a credit institution must have license of the Bank of Russia to perform these operations. Metal accounts are divided into two types: impersonal metal accounts (accounting for precious metals without specifying their individual characteristics, as well as for carrying out operations to attract and place these metals) and safekeeping metal accounts(accounting for precious metals transferred for safekeeping to a credit institution while preserving their individual characteristics).
V) Bank services on trust management of funds and other property of individuals and legal entities are offered mainly when credit institutions carry out activities on securities market... This service is provided both within the framework of individual contract with the client and within multilateral treaty on the consolidation of securities of different owners into a single property complex - general fund banking management (OFBU).
The fiduciary design appeared in Russian legislation only with the introduction of the new Civil Code. V economic sense the disadvantage of the institution of trust management is for banks that their income is limited to the remuneration specified in the agreement. The client, although he has the opportunity to receive an increased profitability from his investments, but at the same time bears the risk of possible losses.
II. Services market for placement attracted funds to the most profitable segments of the economy are represented by the following banking services specified in the Banking Law:
1) placement of funds on their own behalf and at their own expense;
2) issuance of bank guarantees;
3) issuance of guarantees for third parties, providing for the fulfillment of obligations in cash;
4) the acquisition of the right of claim from third parties for the fulfillment of obligations in cash;
5) leasing operations.
A) Bank services for the placement of funds on their own behalf and at their own expense represent the most important group of banking operations, called active. When carrying out active operations, the bank acts on its behalf as owner Money.
Issuance by banks takes a special place among active operations credits... A loan agreement is a type of loan agreement with a special entity (credit institution) on the side of the lender. Under the loan agreement, the credit institution undertakes provide funds to the borrower on the terms stipulated by the contract, and the borrower undertakes return the amount received and pay interest for using the loan.
To conclude a loan agreement, it is enough to reach an agreement only on loan amount because all other conditions can be determined by law.
Providing there may be a pledge of the property of the borrower or a third party, a bank guarantee, a surety of a third party, guarantees and sureties of the government bodies of the Russian Federation, its constituent entities and municipalities. As a rule, the role of securing a loan in banking practice is performed by business risk insurance policy.
The service of purchase of bills and bonds by the bank third parties. The disadvantage of this form of the provision of services by credit institutions for the placement of funds is that obligations on securities cannot be secured by a pledge of property. The only form of security in this case is aval- bill surety. At the same time, the securities purchased by the bank can be freely alienated by it. Some securities (promissory notes of large enterprises, government and municipal bonds) are quoted at market prices, which increases their liquidity.
Often, banks provide services for the placement of funds by concluding repo transactions, by virtue of which the bank acquires from the client an asset (securities, gold, etc.) that the client does not need for normal business activities, and at the same time concludes a reverse transaction to sell the same asset to the client at a higher price. The difference in prices in repo transactions for the purchase and sale of the respective asset is the bank's margin. Repo transactions due to peculiarities tax legislation they are mainly used when providing funds to non-residents.
B) The Banking Law provides for banks to leasing operations (finance lease agreement). The essence of these operations boils down to the fact that the bank provides its client-lessee in a long-term lease with the necessary equipment, and he pays such a lease that covers the lease period and bank interest, and the cost of the equipment.
There are three main type of leasing: financial, operational and returnable.
At financial leasing the lease term is close to the service life of the equipment. Under the terms of financial leasing, the equipment is transferred from the lessor in ownership the lessee only after all lease payments have been paid. Thus, for the bank, such an asset is more liquid, since it is not part of the debtor's property, is not subject to the risk of insolvency and does not require court procedures for foreclosure and sale of this property in case of violation by the debtor (lessee) of its obligations.
Leaseback lies in the fact that the lessee is also the seller of the equipment. That is, the leasing bank first acquires certain equipment from the lessee, and then leases this equipment to him. Thus, the title of ownership of the equipment changes, while the lessee retains the possibility of its production use. Leaseback leasing allows you to achieve the same result as lending secured by equipment: the lessee receives the necessary credit funds and the lessor bank places the money in secured earning assets.
Operating leases are used primarily for such equipment that can be rented out or sold at a profit after a short operating life. The difference from other types of leasing is that the lease term is much shorter than the term of the possible use of the equipment (car lease). The main difference between leasing and leasing is the special acquisition of property by the lessor for leasing it to the lessee.
V) Bank services on issuance of bank guarantees and sureties for third parties, providing for the fulfillment of obligations in cash, are provided to secure the obligations of the bank's customers to third parties. As a result of the issuance of a bank guarantee, the bank does not lend funds to the client, but assumes the risk of the client not fulfilling its obligations.
A bank guarantee is different from a bank guarantee. First, it is core commitment, and not accessory, like a surety (valid even if the main obligation is invalid; the term of the bank guarantee does not depend on the term limitation period on the main obligation). Secondly, according to the bank guarantee, the bank bears joint responsibility, while the guarantee may provide for subsidiary liability of the bank. Thirdly, the payment of funds under a bank guarantee is carried out on the basis of only the requirements of the beneficiary with the attachment of the documents specified in the guarantee, and the guarantor bank is not entitled to condition the payment with any additional requirements or refer to the fulfillment of the main obligation that took place... And, finally, if the right of recourse for the surety who has paid off the debt under the obligations of the principal arises on the basis of the law, then for the emergence of the right of recourse from the guarantor bank to the principal under the bank guarantee, it is necessary to indicate this in the bank guarantee.
The law provides only two cases when the bank may refuse to pay amounts: (a) if the claim or the documents attached to it do not meet the conditions of the bank guarantee, or (b) if the claim is presented to the bank after the expiration of the bank guarantee (clause 1 of article 376 of the Civil Code of the Russian Federation). If the bank knows that the main obligation has already been fulfilled, this does not exempt it from payment: it must inform the beneficiary and the principal about this, and upon receipt of a repeated demand from the beneficiary, it must pay him the amount of the bank guarantee.
G) Bank services for acquiring the rights to claim fulfillment of obligations in cash from third parties are called differently factoring operations(financing against the assignment of a monetary claim). The economic content of these services lies in the fact that a credit institution acquires the rights of claims of its clients to their debtors and thus provides loans to clients. Factoring is very similar to an assignment (assignment of a right of claim), but it is not such, since the legislator does not provide for the possibility of even optional application of the assignment rules to financing relations against the assignment of a monetary claim. Compared to cession, factoring has the following features: (a) an organization with a corresponding license acts as a financial agent (factor); (b) the prohibition of the transfer of the creditor's rights to another person without the consent of the debtor, established by law or by agreement, does not invalidate the assignment of rights to a financial agent under a factoring agreement (Clause 1 of Article 828 of the Civil Code of the Russian Federation); (c) the subsequent assignment of the right of claim by the financial agent is allowed if it is provided for in the factoring agreement (Article 829 of the Civil Code of the Russian Federation).
It is customary to distinguish negotiable(the client is liable to the financial agent not only for the validity of the assigned monetary claim, but also for its actual performance by the debtor; in this case, both the additional benefit in excess of the financing amount and the financial agent's remuneration are payable by the financial agent to the client) and non-negotiable factoring (the client is liable to the financial agent only for the validity of the assigned claim, all additional benefits go to the property of the agent).
Conditional financing agreement against the assignment of a monetary claim, according to which it is transferred to the financial agent if the client does not fulfill his obligations to the financial agent.
The bank's income from factoring operations (remuneration of the financial agent) can be expressed: (a) in the difference between the amount of financing provided to the client and funds received from debtors in execution monetary obligations or (b) c fixed amount specified in the factoring agreement.
The placement of funds attracted in deposits on their own behalf and at their own expense as a banking operation is provided for in paragraph 2 of Part 1 of Art. 5 of the Banking Law. But there it is only named. And the specific rules for this banking operation are stipulated by the Bank of Russia Regulation No. 54-P.
As already mentioned in Ch. 2 textbooks, doctrinally, in any banking operation, three components are always seen (goals of the operation, technology, risk management of the operation).
In this case, in relation to the placement of funds, there should also be these three components, but only filled with specific content.
In this banking transaction, by definition, there must be: a) the subject and purpose of the banking transaction; b) the procedure for the provision and repayment of funds, including accounting for both; c) compliance with financial standards when issuing and servicing a loan, creating reserves for loan debt. Let us analyze this banking operation from the standpoint of the methodology outlined by me for studying the content of a banking operation.
The first two components are regulated by Bank of Russia Regulation No. 54-P. The third component is regulated by other regulations of the Bank of Russia, i.e. those that regulate economic standards and the creation of reserves for loan and equivalent debt.
The Bank of Russia Regulation No. 54-P clearly formulates the second component of the banking operation, those. regulated procedure for issuing funds credit institutions and their return to a credit organization.
Let's pay attention to the name of this Regulation of the Bank of Russia No. 54-P. The title of this banking operation refers not only to the provision (placement) of funds by credit institutions, but also to their return (repayment). Because the procedure for returning funds back to the credit institution (repayment) is also a banking operation.
Let us pay attention to this point for the reason that in practice this order is often violated. Banks issue loans to citizens, in particular mortgages, and in case of non-return or delay in payments, they assign rights of claim on them. Moreover, the rights of claim are conceded not to the bank, but to any organization. Meanwhile, if such an organization does not have a banking license, it turns out that the bank violates the requirements of the Bank of Russia Regulation No. 54-P in the event that it cedes the right of claim to it under the loan agreement.
In clause 1.1 of the Bank of Russia Regulation No. 54-P it is determined that it provides for the procedure for carrying out operations but for the provision (placement) of funds by banks to clients, including other banks - legal entities and individuals (moreover, regardless of whether they have or do not have settlement, current, deposit, correspondent accounts with this bank), and the return (repayment) of funds received by the clients of banks, as well as accounting for these operations.
Now let's touch on the question of which relations are not covered by Bank of Russia Regulation No. 54-P. The Regulation specifies that it does not apply to the relationship between the Bank of Russia and banks for the placement of funds. These relationships are governed by the legislation of the Russian Federation and the relevant regulations of the Bank of Russia.
In addition, Bank of Russia Regulation No. 54-I does not regulate relations on opening and maintaining bank accounts. This procedure is regulated by law and the relevant instructions of the Bank of Russia, in particular, Instruction of the Bank of Russia No. 153-I.
This point in the Regulation of the Bank of Russia No. 54-P is important, given that the loan can be provided in the form of an overdraft. This means that this Provision is also not applicable in this regard.
In the same place, in clause 1.5 of the Regulation of the Bank of Russia No. 54-P, it is determined that its norms do not regulate operations for the provision (placement) of funds by banks, carried out using bank plastic cards of the bank, as well as bank operations for placing bank funds in securities (bonds , certificates of deposit, bills of exchange and other promissory notes of issuers). These operations are regulated by the legislation of the Russian Federation and the relevant regulations of the Bank of Russia, in particular, in relation to bank cards - the Regulation of the Bank of Russia No. 266-P. This point is also legally important.
Banks issue loans to their customers using bank cards... Consequently, the Regulation of the Bank of Russia No. 54-P in this regard also does not apply if the bank applied credit card... At the same time, the question arises as to how the concepts of "issuance to an individual the amount of a loan in cash through the cash desk "and" issuing a loan to an individual through an ATM. "The literature notes that in relation to individuals, the expression" in cash through a bank cash desk "can also be applied to ATMs (if we assume that an ATM is a cash department Here, however, there is a special procedure: in accordance with clause 1.5 of the Regulation of the Bank of Russia No. 54-P, this document "does not regulate operations for the provision (placement) of funds by banks, carried out using bank plastic cards."
As noted, the second component of this banking operation is regulated in detail. The provision (placement) of funds by the bank is carried out in next order:
- - to legal entities - by bank transfer by crediting funds to the current or correspondent account / subaccount of the borrowing client, opened on the basis of a bank account agreement. The same procedure applies to the provision of funds for payment of payment documents and for payment wages;
- - to individuals - by bank transfer. The money is credited to the bank account of the client-borrower of an individual, which, for the purposes of Bank of Russia Regulation No. 54-P, also means an account for recording the amounts of deposits (deposits) of individuals attracted by the bank in the bank or in cash through the bank's cash desk (clause 2.1. 2). I think that "an account for recording the amounts of deposits (deposits) of individuals attracted by the bank in the bank" is an accounting account. Therefore, it seems to me that the specified formulation of this norm is not correct. The bank must provide an individual with funds by crediting them to the bank account of an individual, because an individual is not entitled to dispose of accounting accounts. An individual can dispose of his bank account... And in clause 2.1.2. Bank of Russia Regulation No. 54-P says ns about a bank account, but about an account on which the amounts of deposits (deposits) of individuals attracted by the bank are recorded.
As for loans in foreign currency, clause 2.1.3 of the Bank of Russia Regulation No. 54-11 provides that the provision (placement) of funds in foreign currency to legal entities and individuals is carried out by authorized banks in a non-cash manner.
What methods are used to provide funds to the bank's clients - this issue is reflected in the norms of clause 2.2 of the Regulation of the Bank of Russia No. 54-11.
The provision (placement) of funds by the bank to the clients of the bank is carried out in the following ways:
- - firstly, it can be a one-time transfer of funds to the bank accounts specified in clause 2.1 of the Regulations, or the issuance of cash to the borrower - an individual;
- - secondly, the specified money can be provided by opening a credit line. The Regulation determines that an agreement / contract is concluded, on the basis of which the client-borrower acquires the right to receive and use the funds within the specified period, subject to one of the following conditions (clause 2.2 of the Regulation):
- a) total amount funds provided to the client-borrower should not exceed maximum size(limit) specified in the agreement / contract - "issue limit";
- b) during the period of validity of the agreement / agreement, the amount of the one-time debt of the client-borrower does not exceed the limit set by this agreement / agreement - the "debt limit".
At the same time, credit organizations have the right to limit the amount of funds provided to the client-borrower within the framework of the last open credit line by simultaneously including both of the above conditions in the relevant agreement / agreement, as well as using any other additional conditions for this purpose, while simultaneously fulfilling the established submission , "b" requirements.
The conditions and procedure for opening a credit line for a client-borrower are determined by the parties either in a special general (framework) agreement / agreement, or directly in the agreement for the provision (placement) of funds.
Opening a credit line - concluding an agreement for the provision of funds, the terms of which differ in their economic content from the terms of an agreement providing for a one-time (one-time) provision of funds to a client-borrower.
Besides, in Methodical recommendations dated 05.10.1998 No. 273-T to the Regulation of the Bank of Russia No. 54-P (hereinafter referred to as the Methodological Recommendations) it is determined that before the bank makes a decision on the advisability of providing funds to the client, the creditor bank should carefully study all documents submitted by the borrower (copies of constituent documents , accounting, statistical, financial reporting, balance sheet and annexes to it, decoding of individual performance indicators).
The Methodological Recommendations determine that before issuing a loan, it is necessary to analyze the business plan, marketing, production and management plans, the forecast of the borrower's cash flows with his counterparties for the period of repayment of the funds provided (the schedule of receipts and payments of the client-borrower). In addition, you need to analyze the feasibility study of the loaned transaction. The main thing is to check the credibility of the transaction being credited, to study the credit history of the client-borrower, to analyze the issue of the presence or absence of debt on the obligations of the client-borrower, including overdue, to check the powers of the officials of the client-borrower who sign the agreement for the provision of funds, to check the availability and the quality of collateral (collateral, bank guarantee, surety, insurance policy, etc.), evaluate the information received.
In cases where the client-borrower is not serviced in a potential creditor bank (i.e. does not have a correspondent, current, current account in it), then in addition to the above documents and information, he should receive a card of samples of signatures of persons authorized sign the relevant transactions with the credit institution and manage the funds of the borrowing organization.
In the Methodological Recommendations, in particular, it is determined that before making a decision on the expediency of providing funds, it is necessary to organize and conduct interview meetings with a potential borrower of the bank. These interviews with the borrowing client should be carried out on a regular basis and thereafter throughout the term of the contract.
How the decision to issue a loan is made is a question that is detailed in the Methodological Recommendations. The decision is made based on the analysis of the financial condition of the borrower; the level of his credit solvency; the quality and liquidity of the loan collateral; calculating the sufficiency of collateral for the funds being placed, taking into account the interest due and the possible costs of the creditor bank upon receipt of performance; assessing the risks associated with lending to a specific client (especially when providing blank loans), including analysis of credit risk, foreign exchange risk (when providing funds in foreign currency), industry risk (analyzing the state of the industry to which the borrower belongs) and other risks ...
After the decision on the provision of funds is made by the authorized specialists of the credit institution, the text of the agreement is prepared. Then an appropriate agreement must be concluded. It can be a general loan agreement, a loan agreement, a deposit agreement, a loan agreement, a bank account agreement, or another agreement for the placement of funds.
The agreement defines the basic conditions for the provision and return (repayment) of the funds placed by the bank. It should define the purposes for which the loan is provided.
Documents submitted by the borrower, received responses to requests from a credit institution, as well as documents confirming the fact of providing funds, including an agreement / agreement, additional agreements to it, pledge agreements and other agreements and copies of orders, must be kept in the file of the client-borrower , maintained by the lending bank.
A document confirming the fact of providing funds to the client is an extract from the client's correspondent, current, current account, as well as a loan or interbank deposit account or an account for accounting for other placed funds.
The credit institution determines the procedure for the formation of the dossier of borrower clients and organizes their storage for at least 5 years. After the expiration of the established storage periods, it transfers them to the archive, where customer files are stored in the prescribed manner.
The methodological recommendations prescribe that the relevant division of the credit institution is obliged to organize daily control over the maturity (return) of the borrowing clients of the funds provided to them and the payment of interest on them, including the state of overdue debt on loans of borrower clients, and take the necessary measures to its repayment.
The bank is obliged to develop and approve the relevant internal documents defining its policy for the placement (provision) of funds, as well as the accounting policy and approaches to its implementation: a) documents that determine the procedures for making decisions on the placement of funds by the bank; b) documents defining the distribution of functions and powers between departments and officials of the bank; b) documents that include internal rules for the placement of funds, including the rules for lending to bank customers.
The letter of the Bank of Russia dated January 17, 2005 No. 2-T "On Concluding Transactions with Persons Associated with the Bank and Assessing the Risks Arising in Their Execution", along with banking norms, also contains civil law norms, which, in our opinion, is unacceptable.
Concerning third pillar of banking(compliance with prudential standards and the creation of reserves for loans), they are regulated by other regulations of the Bank of Russia. Recall that an essential element of a banking transaction for the placement of funds is risk management and the creation of reserves. The Instructions of the Bank of Russia dated 03.12.2012 No. 139-I "On mandatory standards for banks", dated 31.03.2004 No. 112-I "On mandatory standards for credit institutions issuing mortgage-backed bonds" provides for a number of standards that must be observed by a credit institution ...
A credit institution is obliged to classify assets, highlighting doubtful and bad debts, and create reserves (funds) to cover possible losses in the manner established by the Bank of Russia. It is obliged to comply with the mandatory standards established in accordance with the Law on the Bank of Russia, the numerical values of which are established by the Bank of Russia in accordance with federal law.
The credit institution must have internal control, which, among other things, must check compliance with the requirements stipulated by the regulations of the Bank of Russia.
- Bank of Russia Instruction No. 139-I of 03.12.2012 "On Compulsory Bank Ratios".
- See: Bank of Russia Regulation No. 242-P.
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