Placing the funds raised from your own behalf and at your own expense and credit contract. Placement of funds raised into deposits on their own behalf and at their own expense of funds at their own expense
11. In accordance with the legislation of the Russian Federation, bank transactions include:
A. Provision of information services.
B. Providing to the lease of individuals and legal entities of safes for storing values.
C. Implementation of settlements on behalf of individuals and legal entities.
D. Rental of premises for trading activities.
12. Commercial Bank is:
A. Structural division of the Ministry of Economy.
B. Deposit for gold reserves.
C. Mediator in calculations and lending.
D. Government Financial Agent.
13. Customers of the Central Bank, as a rule, are:
A. Directly enterprise and organization of various sectors of the economy.
B. Individuals.
C. Only credit organizations.
D. All legal entities.
14. Modern commercial banks carry out service:
A. Enterprises, organizations and population.
B. Only the population and the Central Bank.
C. Only enterprises and organizations.
D. Only enterprises, organizations and the central bank.
15. Despite the form of ownership when creating commercial banks, they are ... subjects.
A. Dependent on the government.
B. Independent.
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 have the right:
A. Implement the issue of banknotes.
C. Support the stability of the purchasing power of the national monetary unit.
D. Make the issuance of guarantees for third parties.
17. Commercial banks carry out operations on:
A. Monopoly banknotes.
B. Attracting funds for legal entities and individuals into deposits.
C. Ensuring the stability of the purchasing power of the monetary unit.
D. Maintaining the liquidity of the banking system of the country.
18. What activity is forbidden to engage in credit institutions?
A. Loan activities.
B. Customer service and customer service.
C. Trading activities.
D. Opening and conducting accounts of individuals and legal entities.
19. In accordance with the legislation of the Russian Federation, commercial banks have the right to:
A. Conduct monetary policy.
B. Compete with the Central Bank of the Russian Federation.
C. Support the stability of the banking system.
D. Open and conduct accounts of individuals and legal entities.
20. The credit organization is prohibited:
A. Customer service and customer service.
B. The accumulation of free funds of legal entities.
C. Insurance activities.
D. Consultation on banking issues.
21. The credit institution is prohibited:
A. Accounting bills.
B. lending to individuals.
C. Organization of settlements between customers.
D. Production activities.
1.2. Objectives and functions of the Central Bank of the Russian Federation
1. The authorized capital and property of the Central Bank of the Russian Federation are ... property.
A. Federal.
B. Joint Stock.
C. Private.
D. Joint.
2. Capital of the Bank of Russia is formed by:
A. States of the state.
B. Dumping individuals.
C. Funds of commercial banks.
D. Funds of enterprises and organizations.
3. The purpose of the activities of the Central Bank of the Russian Federation is not:
A. Issuing loans to credit organizations.
B. Maintain the sustainability of the Russian ruble.
C. Lending to individuals.
D. Government lending.
4. In accordance with Russian legislation, the collegial body and the highest branch of the Bank of Russia is:
A. Board.
B. Bank Supervision Committee.
C. National Banking Council.
D. Board of Directors.
5. How many people are part of the National Banking Council?
6. The National Banking Council meets at least 1 time in:
A. Quarter.
C. half a year .
7. The Board of Directors of the Central Bank of the Russian Federation includes.
The market for the placement of attracted funds in the most profitable segments of the economy is submitted by the following banking services specified in the Bank's Law:
1) placement of cash on their own behalf and at its own expense;
2) issuance of bank guarantees;
3) issuance of guarantees for third parties providing for the fulfillment of obligations in monetary form;
4) acquisition of the right of claim from third parties to fulfill the obligations in cash;
5) Leasing operations.
Services of banks on the placement of cash on their own behalf and at their own expense are the most important group of banking operations called active. In the implementation of active operations, the Bank speaks from its own person as the owner of funds, regardless of whether the source of funds own bank capital or the funds raised.
The active operations of banks include the issuance by the Bank of Credits, including interbank, buying a bank from their own securities, currency, precious metals, etc. Bank margin can be expressed as percent or in the form of exchange differences. Thus, when buying a bank of bills bills, the Bank expects primarily on income in the form of interest paid for these securities. When purchasing a bank of shares, it calculates, as a rule, on a positive change in the market value of these securities.
A special place among active operations is the issuance by banks of loans. Credit contract - a kind of loan agreement with a special subject (credit institution) on the lender side. According to the loan agreement, a credit institution undertakes to provide cash by the borrower on the conditions provided for by the Treaty, and the borrower undertakes to return the amount of money and pay interest for the use of the loan.
As a rule, the conditions for granting a loan are established in a loan agreement in fairly detailed. However, to conclude a loan agreement, it is sufficient to achieve agreement only about the amount of the loan, because all other conditions can be determined on the basis of the law.
Usually a loan is issued when providing its return. The security of the property of a borrower or a third party, a bank guarantee, a third party guarantee, guarantees and guarantee of state administration bodies of the Russian Federation, its subjects and municipalities. It should be noted that among those specified in the ch. The 23 Civil Code of the Russian Federation ways to provide obligations in the practice of bank lending are not all applied quite effectively. Thus, the penalty is considered rather as a measure of responsibility for improper performance by the borrower of its obligations, and not as a way to ensure the obligation; Holding is also rarely applied: for this, it is necessary that the crediting bank owns any assets of the borrower, which happens quite rarely. As a rule, the role of securing a loan in banking practice performs an insurance policy of business risk insurance.
A service is distributed to the purchase of bills of third parties. As a result, the same economic effect is achieved as under lending: obliged on securities of the person receive the funds they need.
It is characteristic that this banking operation, which is exactly the name of which is given in paragraph 2 of Article 5 of the Federal Law "On Banks and Banking Activities" (hereinafter referred to as the Federal Law), does not contain a term "loan".
Because the placement of funds attracted by the credit organization are not reduced only to the bank loan. For example, a credit institution can buy securities, bills, precious metals and conduct other active operations. But, of course, the greatest share in its active operations is traditionally occupied by bank loans.
one). Credit and banking operations for cash
Bank credit is a type of banking operation on the placement of funds attracted by the credit institution.
In banking practice, the term "loan" and the term "credit" is often used as equivalent terms. In order to make sure this is enough to see the accounting rules in credit institutions. The use of such terms has become so common, and entered into the daily, professional use, that attempts to change it do not make sense. Credit organizations use information technology and software products in which this term applies. Although in the Civil Code of the Russian Federation, the loan agreement is a contract of free use of the thing.
The loan has the right to issue any commercial organization. And the loan can only issue a credit institution. This approach was previously based on the fact that in paragraph "a" h. 1 Art. 5 "banking operations and transactions", now inactive edition of the RSFSR law of December 2, 1990 "On banks and banking activities in the RSFSR" (as amended on December 13, 1991, June 24, 1992) was fixed with the norm, which It was provided that banks can "attract deposits (deposits) and provide loans by agreement with the borrower. It turned out that the term" loan "was used in the formulation of the banking operation itself. But after in 1996 this law was set forth in a new edition (as federal Law "On Banks and Banking Activities"), the situation has changed.
According to the Federal Law of February 3, 1996, "On Amendments to Amendments to the RSFSR Act" On Banks and Banking Activities in the RSFSR ", organizations have the right to carry out systematic commercial lending to interest, since the provision of loans is not included in the list of banking operations. * (310 ) However, we can talk only about commercial lending. About him, more details, let's say when it comes to the types of credit. But as for bank lending, everything is more complicated here.
In the Federal Law "On Banks and Banking Activities", namely, in its article 5, it is said that banking operations include: "1) Attracting funds for individuals and legal entities in deposits (demand and for a certain period); 2) Specified in paragraph 1 of the first section of this article of attracted funds from their own behalf and at their own expense ... ". As we see from the above quotation, the term "credit" in it is missing. The wording of the second banking operation made a reference to paragraph 1 of the first part of this article. And in this paragraph there are not all attracted cash of individuals and legal entities, but only their contributions.
It turns out that the placement of only contributions, and not any attracted funds - a banking operation, which is said in the same federal law, requires a 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, which to extract profits as the main goal of its activities on the basis of a special permit (license) of the Central Bank of the Russian Federation (Bank of Russia) has The right to carry out banking transactions provided for by this Federal Law. "
In part 1 of Article 13 of the Federal Law states that "the implementation of banking operations is made only on the basis of a license issued by the Bank of Russia in the manner prescribed by this Federal Law." And then, - in part 6-8 of the same article of the Federal Law it was said that "the legal entity of banking operations without a license entails recovery from such a legal entity of the amount obtained as a result of the implementation of these operations, as well as the penalty of a fine in two-time The amount of this amount into the federal budget. The recovery is carried out in court under the claim of the prosecutor corresponding to the federal executive body authorized by the Federal Law, or the Bank of Russia.
The Bank of Russia has the right to submit to the arbitration court about the liquidation of a legal entity carrying out bank transactions without a license.
Citizens who illegally carrying out banking operations are in accordance with the law established by law civil-law, administrative or criminal liability. "
So, it would seem that everything is clear. If the organization carries out a banking operation, it should receive a bank license. But it remains only to prove that the organization carries out a banking operation. In this case, this means that a loan as a banking operation can be considered as 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 places not deposits, but other funds raised, then under the requirements of the federal law it is no longer falling.
True, in the Civil Code of the Russian Federation there are criteria for determining who can provide funds under the loan agreement. In part 1 tbsp. The 819 of the Civil Code of the Russian Federation states that "under the loan agreement, a bank or other credit organization (creditor) undertakes to provide cash (credit) borrower in the amount and on the conditions provided for by the Treaty, and the borrower undertakes to return the amount of money and pay interest on it." It turns out that the loan agreement is associated only with a bank or other credit institution. And this means that only a credit organization can enter into a loan agreement. But, because cash can be provided not under the loan agreement, but under the loan agreement. And if they are their own lenders, then there are no questions about a banking license at all. Another thing if it is borrowed funds. But again, only two types of funds raised restriction are the contributions of individuals and legal entities.
The conclusion is: the formulation of the canceled version of the RSFSR Law "On Banks and Banking Activities", the loan was determined as a banking operation. Now the loan acts as a transaction, and the banking operation is the technology of its holding. In the federal law, this technology is indicated by the term "deployment of money".
Types of deployment of funds attracted by the credit institution are quite diverse. This, for example, the placement of precious metals attracted into deposits, buying precious stones, issuing loans in precious metals, placement of deposits in other credit institutions, the adoption of securities in a deposit on issued loans, billing of bills, buying bonds, buying commemorative coins, financing for concession Monetary Requirements (factoring) and other types of deployed funds. Therefore, bank loans are only part of the transactions that make up the economic basis of banking operations on the placement of attracted 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, cash placing operations, and, above all, bank loans are specifically regulated by the norms of federal laws and regulatory acts of the Bank of Russia. In particular, such norms are contained in the Federal Law "On Banks and Banking Activities" (Article 24, 29, 30) * (311), in the Regulation of the Bank of Russia dated August 31, 1998 N 54-P "On the Procedure for Providing ) credit institutions of 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 of loan organizations of reserves for possible losses on loans, on loan and equivalent to it debt. " In these regulatory acts of the Bank of Russia, the technologies for posting cash to the credit institution and the creation of reserves are regulated.
2). Bank credit and other types of loan
Bank loan. In the Civil Code of the Russian Federation, a bank loan is one of the varieties of a loan in general. It is issued only by a credit institution with the relevant banking license.
Civil Code of the Russian Federation regulates also a commercial loan. There are norms in it and about the commodity loan. For these loans, the banking license is not required.
In world practice, there is no single classification of bank loans, which, according to specialists, is explained by various levels of economic development of countries, various traditions and other factors. From an economic point of view, all loans are divided into groups of borrowers, on the purpose of the loan, in terms of repayment, by types of collateral, according to the methods of providing, in the order of repayment, by type of interest rates, according to the methods of calculating interest rates, according to the loan currency, in terms of creditors. * (312)
Regulation of loans by means of banking law is intended to send a credit policy of a commercial bank in such a way that on the one hand, the profitability of the banking operations conducted by them, and on the other hand, ensure that the interests of the banking system as a whole, as well as the interests of banking clients, are guaranteed. In this regard, it is important to understand the principles of the credit policy of a commercial bank.
According to Panova G.S., the specific principles of the credit policy of the Commercial Bank are: profitability, profitability, safety and reliability. * (313) In a broad sense, "... The optimal policy of a commercial bank is a policy, as a result of which the bank's income, its Profit seek infinity, and costs and risks to a minimum. "* (314) from this point of view, and federal laws and the normative acts of the Bank of Russia, with respect to the credit institution, are a certain external limiter of its active operations. They need to ensure that the policy of the credit organization does not become overly risky.
Bank loan is provided on the basis of the contract. In this sense, he is a deal. In this relationship, the Bank of Russia is not entitled to interfere. It can regulate only banking operations as the form for implementing this transaction, as a technology for issuing and repaying the loan. * (315)
Trade loan. In art. The 822 Civil Code of the Russian Federation provides that the Parties may conclude an agreement providing for the obligation of one party to provide the other Party to the things defined by the generic signs (trade loan agreement). The rules of paragraph 2 ch. 42 of the Civil Code, that is, the same rules as for a bank loan, unless otherwise provided by the Commodity Credit Agreement and does not follow the obligation.
Conditions on quantities, about the assortment, about the packaging, about the packaging, about the packaging and (or) of the packaging of the goods provided must be executed 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 Commodity Treaty loan.
The subject of this contract is the things defined by the generic signs. His parties can be any faces.
This contract is usually, as any loan agreement, is compensated. * (316)
Commercial loan. In art. 823 of the Civil Code of the Russian Federation is enshrined the norm in which it is envisaged that agreements, the execution of which is associated with the transfer to the property to the other party of money or other things determined by the generic signs, the provision of a loan may be provided, including in the form of an advance payment, deferred and installment Payment of goods, works or services (commercial credit), unless otherwise established by law.
In part of the second 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 Treaty, from which the relevant commitment arose, and does not contradict the essence of such an obligation.
State and municipal credit. The state and municipal credit are governed by budget legislation.
3). Credit agreement
A bank loan agreement is a special case of a bank loan agreement 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 the loan apply to the loan agreement in the forelock, since this, first, 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 creature of the loan agreement.
This is a consensus contract. At first there is a contract, and after that a loan is issued. On the contrary, the loan agreement is a real agreement: the moment of concluding a treaty coincides with the moment of money transfer to the borrower.
GK provides that under the loan agreement, one side (lender) transfers to the property of the other party (borrower) money or other things defined by generic signs, and the borrower undertakes to return the lender the same amount of money (the amount of the loan) or an equal number of things they received of the same kind and quality.
Unlike the loan agreement, the subject of the loan agreement is only cash.
According to a loan agreement, a bank or other credit institution (creditor) undertakes to provide cash (credit) borrower in the amount and on the conditions provided for by the Agreement, and the borrower undertakes to return the amount of money and pay interest on it. The rules stipulated by paragraph 1 of Chapter 42 of the Civil Code of the Russian Federation are applied to relations under the loan agreement, unless otherwise provided by the rules of paragraph 2 of chapters 42 of the Civil Code of the Russian Federation and does not follow from the being of the loan agreement. (Article 819 of the Civil Code of the Russian Federation). Therefore, the loan agreement is compensated.
We draw attention to the fact that in Article 819 of the Civil Code of the Russian Federation there is no indication that the cash amount of the loan is transferred to the ownership of the borrower. But this is stated in the article about the concept of a loan. Namely, in part 1 of Article 807 "Loan Agreement" says that "under the loan agreement, one party (lender) transfers to the property of the other party (borrower) money or other things defined by generic signs, and the borrower undertakes to return the borrower the same amount Money (amount of loan) or an equal number of other things received by the same kind and quality. "
Form of the loan agreement written. In contrast to the loan, which, with those indicated in the Civil Code of the Russian Federation, conditions may be written, for the loan agreement, the established written form of the contract. It does not require that the contract necessarily had a notarial form.
Failure to comply with the written form entails the invalidity of the loan agreement. Such an agreement is considered insignificant.
In Chapter 42 of the Civil Code, there is no indication that interest in the loan agreement should be indicated. And in the absence of a percentage of interest in the contract, their size is determined by the existing lender at the residence place, and if the lender is a legal entity, at the place of its location of the banking interest (refinancing rate) on the day of payment by the borrower of the debt amount or its respective part. In the absence of a different agreement, interest is paid monthly until the day of returning the loan amount.
True, Article 30 of the Federal Law "On Banks and Banking Activities", unlike the Civil Code of the Russian Federation, it provides that interest and some other conditions must be indicated in the contract. Almost this means that if other types of credit fees are indicated instead of interest, which is sometimes found in the work of banks, it may be the subject of the dispute.
The borrower is obliged to return the lender the resulting loan amount on time and in the manner provided for by the loan agreement. In cases where the return period of the contract is not established or determined by the moment of demand, the loan amount must be returned to the borrower for thirty days from the date of presentation of the requirement of the requirement of this, unless otherwise provided by the contract.
Unless otherwise provided by the loan agreement, the amount of interest-free loan can be returned to the borrower ahead of schedule. The amount of the loan granted to interest can be returned early with the consent of the lender.
Unless otherwise provided for by the loan agreement, the loan amount is considered returned at the time of transferring its lender or enrollment of relevant funds to its bank account.
Unless otherwise provided by law or the loan agreement, in cases where the borrower does not return the amount of the loan within a time, interest in the amount provided for by paragraph 1 of Article 395 of this Code, from the day when it had to be returned, until the day Its return to the lender, regardless of the payment of interest provided for in paragraph 1 of Article 809 of this Code.
Target loan. Regarding this loan, the provision of Article 814 of the Civil Code of the Russian Federation applies. If the loan agreement is concluded with the condition of use by the borrower of funds received for certain purposes (target loan), the borrower is obliged to ensure the possibility of carrying out the proceeding of control over the targeted use of the loan amount.
Recognition of a loan agreement with a large transaction. When concluding a loan agreement, it should be kept due to the organizational and legal form of the borrower and related restrictions on major transactions. The loan agreement can be recognized as a major transaction if the amount of the loan provided on it and the interest provided for by the interest agreement (excluding interest for the delay in the return of the loan) is more than 25 percent of the balance sheet value of the Company's property.
The joint-stock commercial bank appealed to the Arbitration Court with a lawsuit against a limited liability company to recover the amount of debt on the loan agreement, as well as interest for using a loan and increased interest due to the loan default in the period provided for by the Treaty. The defendant stated a counterclaim on the recognition of a loan agreement, indicating that the amount of the claims presented by the claimant exceeds 25 percent of the balance sheet value of the Company's property, and the Company's director of this loan agreement, in the absence of a relevant decision of the Board of Directors or the General Assembly of the Limited Liability Participants, is contrary to Article 46 of the Federal Law "On Limited Liability Societies" (hereinafter - the Law on Limited Liability Societies). The arbitral tribunal satisfied the main claim of the joint-stock commercial bank and refused in the counterclaim declared by the defendant. At the same time, the Court noted that the defendant unreasonably took the loan agreement concluded by them to a major transaction, determining its amount, based on the amount of the loan received under the contract, and from the amount of claims declared by the plaintiff in which, along with the amount of the loan, interest is included for the use of them and Increased interest for the failure of the loan within the prescribed period, which is a measure of responsibility for the delay in the fulfillment of the monetary obligation. When comparing the amount received by the defendant on a loan agreement, the court has established the court with the company's balance sheet to the date of the transaction, that it did not reach 25 percent of the book value of the Company's property at the specified date, and therefore admitted that the general director of the Company had the right to conclude a contract without receiving The consent of the Board of Directors or the General Meeting of the Company's participants. The appellate instance legally canceled the decision, recognizing the loan agreement with a major transaction, taking into account the fact that the amount of obligation under this Agreement should be determined on the basis of not only the size of the loan received by the Borrower, but also provided for by the interest agreement for the use of them during the term that a loan is provided. At the same time, the Court noted that the payment of the specified interest in accordance with Article 819 of the Civil Code of the Russian Federation is part of the main obligation under the loan agreement. The total amount of loan and interest for the use of them exceeded 25 percent of the book value of the Company's property. In determining the amount of the transaction, which can be attributed to the major, are not subject to inclusion in it, accrued for the delay in the fulfillment of the monetary obligation (Article 395 of the Civil Code of the Russian Federation), as well as other amounts charged from the debtor in applying responsibility to him ( penalty, fine, penalty). The interest provided by the loan agreement for the use of the loan during the term provided for by the contract is not a measure of responsibility and should be taken into account when determining the amount of the transaction. * (317)
In the process of concluding a loan agreement, the question of the empowerment on the conclusion of the contract should be taken into account. To this end, it is necessary to systematically explore all the rules of various laws that have or may be related to this transaction, and it is also necessary to take into account the risk of interpretation of regulatory acts. In addition, it is always necessary to check the legal capacity of the borrower. It is necessary to carefully familiarize themselves with its constituent documents.
Bill. In cases where, in accordance with the Agreement of the Parties, a borrower issued a bill, certifying any no obligation of the bill of exchange (a simple bill of exchange) or another payer specified in the bill of exchange (transfer bills) to pay money from the exchange amount provided for by the exchange rate, the relationship of the bill on the bill About the transfer and simple bill.
Since the issuance of the bill of exchange Rules of the Civil Code of the Russian Federation may apply to these relationships, since they do not contradict the law on the transfer and simple bill (article 815 of the Civil Code of the Russian Federation). The appointment is to design the fact of delaying the fulfillment of the monetary obligation (the fact of providing a loan by the acquirer of the bill). * (318) That is why it is used as a means, with which the borrower lending is carried out. A bill loan is a loan form.
In the case of a simple bill, the loan turns out to be a purchase agent. With the help of a bill drawn up a loan. This is the appointment of a simple bill.
The appointment of a transfer bill consists of the design of two credits and the fact of transferring their own debt to the remittor on the payer. The payer will agree (accepts) with the transfer of the debt of the billboard, depending on the state of other legal relations, which served as the basis for exposing a transfer bill. * (319) In the information letter of the Presidium of the Supreme Arbitration Court of Justice of the Russian Federation of July 25, 1997 N 18 "Permissive Practice Review Disputes associated with the use of bill in the economic turnover ", in particular (paragraph 18), it is said that the person who is not charged to make a payment, is not obligated on the bill. In accordance with the Treaty, the Property Player Organization of a simple bill requested its payments to payments to its bills at the expense of its bills at its expense. The promissory record was made that the payment should be made in the bank at the location of the current account of the credentials. Upon the occurrence of the period of payment, the bill holder turned to the specified bank with the requirement of payments of the bill. The bank refused to pay due to the lack of funds at the current account of the credentials. At the request of the notes, the bill of exchange was performed in the non-payment. The billboard addressed the Arbitration Court with a lawsuit to the bank, which was entrusted to produce payments, for the recovery of bill debt, as well as interest, penalties and costs on the protest in accordance with Article 48 of the provisions on the transfer and simple bill. The arbitration court satisfied the claims, since the bank's responsibility to pay on the bill of exchange follows from the instructions in the bill that the payment is made by this Bank and the fact of the Bank's refusal to pay the bill is documented. According to the court, this decision was made with violation of the norms of financial law. The person specified by the letterhead, which he imposes the obligation to pay on the bill, is not a person who suffers from article 47 of the provisions of the responsibility for paying bills to the bill holder. Such responsibility is the most responsible for the beneficiary who appointed an authorized person for payment. Based on the decision set out by the decision of the cassation instance, the decision was canceled and refused in the claim. * (320)
It should be borne in mind that banks use various schemes for using bills in lending to their customers. One of the ways of lending is a bill loan.
Bond. In cases stipulated by law or other legal acts, the loan agreement can be concluded by issuing and selling bonds.
The bond recognizes the security certifying the right of its holder to receive from the person who has released a bond into the nominal value of the bond or other property equivalent. The bond provides its holder is also the right to receive a fixed interest in it from the nominal value of the bond or other property rights.
To the relationship between the person who released the bond, and its holder, the loan rules are applied to the extension, since otherwise not provided for by law or in accordance with the procedure (article 816 of the Civil Code of the Russian Federation).
four). Providing repayment of credit
Providing loans, to some extent, regulated by banking and civil law.
Article 33 of the Federal Law "On Banks and Banking Activities" states that "banks provided by the Bank can be provided by the pledge of real estate and movable property, including state and other securities, bank guarantees and other methods provided for by federal laws or treaty. In violation by the borrower of obligations under the Treaty, the Bank has the right to accumulate the loans provided early, and interest accrued on them, if it is provided for by the contract, as well as to recover on the mortgaged property in the manner prescribed by the Federal Law. "
Civil Code provides various ways to provide loans.
Article 329 of the Civil Code of the Russian Federation provides that the fulfillment of obligations can be ensured by a penalty, a pledge, deduction of the debtor's property, guarantee, bank guarantee, a deposit and other methods provided by law or the contract. All these ways to ensure the fulfillment of obligations have its own characteristics that need to be taken into account in relation to a specific situation. Most often in practice, a penalty is used, a deposit, guarantee and bank guarantee.
Credit organizations practice the creation of various ways to ensure a loan and protect their interests (explicit, debt forgiveness, innovation).
The general moments characterizing the selection of this or that way of ensuring the return of the loan is 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 person providing a loan.
Penalty. A penalty (penalty, penal) is recognized as a law or agreement, which the debtor is obliged to pay the lender in the event of non-fulfillment or improper fulfillment of the obligation, in particular in the event of a delay. At the request of the payment of the penalty, the lender is not obliged to prove damages to it. The penalty agreement should have a written form.
The penalty can be reduced by the court in case of recognition of its disproportionate. The legitimateness 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, the monetary amount determined by law or the agreement, which the debtor is obliged to pay the lender in the event of non-fulfillment or improper fulfillment of the obligation, in particular the delay in execution. According to Article 333 of the Civil Code of the Russian Federation, if the penalty is explicitly disproportionated by the consequences of the impairment of the obligation, the court has the right to reduce the penalty (part of the first); however, the rules on the possibility of a decrease in the penalty do not affect the creditor rights to compensation for damages (part two). Thus, civil law provides for a penalty as a way to ensure the fulfillment of obligations and measures of property responsibility for their non-fulfillment or improper performance, and the right to reduce the size of the penalty is provided to the court in order to eliminate the explicit disproportion of the consequences M Violation of obligations. "* (321)
Pledge. The collateral agreement is regulated by the Civil Code of the Russian Federation and the Federal Law "On Pledge".
Pledge, as a way to ensure the fulfillment of obligations has certain advantages and disadvantages. One of them lies in the fact that not any property can be the subject of pledge. And the prohibitions are contained in regulatory acts that have different sectoral affiliation. For example, in Article 51 of the Founded of the Legislation of the Russian Federation on Culture, it is said that "the cultural values \u200b\u200bstored in state and municipal museums, art galleries, libraries, archives and other state cultural organizations cannot be used as a loan or commissioned on bail "* (322) We need to take into account the features of the organizational and legal form of a legal entity property, which is the subject of pledge. In particular, this concerns societies with limited and more responsibility, closed joint-stock companies. Here the right of preferential purchase of shares, shares is essential. It complicates the application of the collateral to ensure the return of the loan. State, municipal unitary enterprises have specificity.
The founders of economic societies and partnerships have mandatory rights and therefore only they can be given to deposit, not the proportion of property.
Each subject of pledge has specificity. For example, the legal regime of the use of goods in circulation and real estate, differ. * (323) If the subject is the subject of the property, it is necessary to take into account the requirements of the Federal Law "On Mortgage (Property Pledge)". Article 19 of this Law provides that the mortgage is subject to state registration with Justice agencies in a single state register of rights to immovable property in the manner prescribed by the Federal Law on State Registration of Rights to Real Estate and Transactions with Him. Here it is necessary to take into account the norms of the Federal Law of July 21, 1997 "On state registration of rights to immovable property and transactions with it." * (324)
Thus, applying this method of securing a loan, you need to take into account all positive and negative points. The expediency of its application depends on the specific situation. Important importance There are factors such as the cost and liquidity of the collateral, the amount, deadlines and interest on the loan, as well as the economic content of the loan, and evaluation of the risks. It is also important that in some cases, the subject of 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. At the same time, it is necessary to take into account the requirement of legislation on joint-stock companies, in particular with regard to the empower to make major transactions that in some cases (the transaction is large, if it ranges from 25 to 50% of balance assets to the date of its commission), and in others (if the transaction is more 50% of balance assets) require the consent of the Board of Directors of the Summer). * (325) In the Charter of the Limited Liability Company, the Society of Society can be enshrined in the impossibility of alienation of the share of third parties, in this case a credit institution. There may also be some other restrictions that make a guarantee of the right demands unprofitable for a credit institution.
The negative points of this method of providing loans are mainly reduced to the difficulties of the implementation of the collateral (Articles 349-350 of the Civil Code of the Russian Federation).
There may be subject to pledge items specified in the list of types of property of citizens who cannot be recovered by executive documents.
According to the Civil Code of the Russian Federation (part of the first) 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 the subject of the pledge (see also the law of the Russian Federation of May 29, 1992 G. "On Pledge").
It must be borne in mind that in Article 49 of the Federal Law of July 21, 1997, "On Enforcement Procedure" it is envisaged that there may be recovery for lack of property in the debtor of other property to fully satisfy the requirements of the requirements that are not secured by the deposit in compliance with the established civil law of the rights of the pledgee. The mortgagee, who left the laid property, is obliged to satisfy the claims of creditors who enjoy the advantage of its requirement, from the value of the property in the amount not exceeding the value of this property. This is another moment that increases the risk of credit collateral.
According to the Civil Code of the Russian Federation, the claim is satisfied in the third place. This means that when eliminating a legal entity, creditors cannot draw a penalty for the mortgaged property until fully satisfying the requirements of the first and second queues. In the ruling of plenums of the Russian Federation and the Russian Federation N 6/8 in paragraph 25, this issue is explained as follows: "When considering cases of insolvency (bankruptcy) of legal entities, it should be proceeded from the fact that the property of the debtor recognized by the court insolvent (bankrupt), which It was the subject of a pledge, to be included in the general competitive mass of property, and the claims of the creditor - the pledgee are satisfied at the expense of the entire property of the debtor, which remained after meeting the requirements of the lenders of the two first queues, including the not subject to pledge. "
Assessment pledge. Assessment of pledge is made according to the rules established by the Federal Law of July 29, 1998 "On Evaluation Activities in the Russian Federation". * (327) This law formulates the concept of valuation activities. The article provides that for the purposes of the specified Federal Law, an estimated activity is understood as the activities of the subjects of appraisal activities aimed at establishing a market or other value assessment objects. At the same time, under the market value of the assessment object refers to the most likely price, at which this object of assessment can be alienated in the open market in the context of competition, when the parties of the transaction are reasonable, having all the necessary information, and on the magnitude of the price of the transaction does not reflect any emergency circumstances . Along with this, it is essential that one of the parties the transaction is not obliged to alienate the object of the assessment, and the other party is not obliged to take execution; The parties of the transaction are well aware of the subject of the transaction and act in their own interests; The assessment object is presented to an open market in the form of a public offer; The price of the transaction is a reasonable remuneration for the object of assessment and coercion to the transaction for the parties to the transaction from which side was not; Payment for the assessment object is expressed in cash.
According to Article 5 by the Federal Law of July 29, 1998, "On Assessment Activities in the Russian Federation" includes: individual material objects (things); A combination of things that make up the property of the person, including the property of a certain species (movable or immovable, including enterprises); ownership and other real property rights or individual belongings from property; rights claims, commitment (debts); work, services, information; Other civil rights objects 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 compulsory assessment of any object of assessment, or in the assessment assessment agreement (hereinafter referred to as the Agreement), the specific type of value of the assessment object is determined, the establishment is subject to market value This object.
The specified rule is subject to use and in the case of use in the regulatory legal act not provided for by this Federal Law or the standards for the assessment of terms that determine the type of value of the object of assessment, including the terms "valid cost", "reasonable value", "equivalent value", "Real value "And others.
The law provides cases where the assessment of objects is mandatory. In particular, it concerns mortgage lending to individuals and legal entities in cases of disputes about the value of the value of the mortgage.
Development and approval of assessment standards, mandatory for the application of appraisal activities - the competence of the Government of the Russian Federation in accordance with the legislation of the Russian Federation. Evaluation activity refers to the number licensed. * (328)
Detention of the debtor's property. Regarding the implementation of this type of loan, the same order is applied as in relation to pledge.
Guarantee. The contract of guarantee is this agreement between the lender and the guarantor. This is a one-way-binding, consensual and gratuitous contract.
This contract can also be enclosed to provide an obligation that will arise in the future. It must have a written form, the non-compliance with which the invalidity of the contract of guarantee leads.
In case of non-fulfillment or improper execution by the debtor, the obligations provided by the Guarantion, the guarantor and the debtor respond to the lender jointly, if the law or contract of the guarantee is not provided for the guarantor's subsidiary responsibility. At the same time, the guarantor responds to the lender in the same volume as the debtor, including the payment of interest, reimbursement of legal costs to recover the debt and other creditor losses caused by the non-fulfillment or improper fulfillment of the debtor's obligation, unless otherwise provided by the contractual agreement. Sharely entrusted persons respond to the creditor jointly, unless otherwise provided by the contract of guarantee. This contract must be not mixed from a different kind of recommendental letters, certificates of solvency and other similar documents that do not contain agreements between the lender and the guarantor, that is, are not guarantion. The formulation of the contract must accurately comply with its being. Provisions concerning the legal capacity of guarantors and the empower to commit large transactions should be checked for compliance with the requirement of the law in relation to the legal status of the organization and its charter.
five). Responsibility of the parties on the loan agreement
The responsibility of the parties on the loan agreement is provided for by civil and banking legislation.
When concluding a contract, the parties provide for the measures of responsibility in case of its non-fulfillment, guided by civil law.
The loan loan agreement is fully or partially in the presence of circumstances, we obviously indicate that the amount provided by the borrower will not be returned on time. Since in the Civil Code of the Russian Federation it is said that such circumstances should be obvious, then therefore should be direct evidence that the amount will not be returned in the period provided for by the Treaty.
With regard to the loan, the general loan rule is valid that if the loan agreement provides for the return of the loan in parts (in installments), then when a borrower is violated, the period established to return the next part of the loan, the lender is entitled to demand the early return of the remaining loan amount along with interest due. * (329) If the borrower is not fulfilled by the loan agreement on the return of the loan amount, as well as in the loss of providing or worsening its conditions in circumstances, for which the lender does not respond, the lender is entitled to demand from the borrower of early return of the loan amount and paying interest, unless otherwise Not provided by the contract.
If the borrower does not fulfill the terms of the loan agreement on the target use of the loan amount, as well as in violation of the obligations of the borrower to ensure the possibilities of controlling the lender, the latter is entitled to demand the borrower of the early return of the loan amount and paying interest, unless otherwise provided by the contract.
In the Federal Law "On Banks and Banking Activities" there are norms addressed to the credit institution. Article 34 of this Law states that a credit organization is obliged to take all measures provided for by the legislation of the Russian Federation to recover the debt.
The credit institution has the right to apply to the Arbitration Court with a statement on the initiation of insolvency proceedings (bankruptcy) against debtors who do not fulfill their obligations on debt repayment, in accordance with the procedure established by federal laws. * (330)
6). Regulation by the Bank of Russia Operations for the provision of (placement) by credit institutions of funds and their refund (repayment)
The banking operation on the placement by credit institutions of funds is governed by regulatory acts of the Bank of Russia. In the position of the Bank of Russia dated August 31, 1998 N 54-P "On the procedure for providing (placement) by credit institutions of funds and their return (repayment)" (as amended. Provisions, approved. Central Bank of the Russian Federation 27.07.2001 144-P) * (331) (hereinafter referred to as the position). True, the situation provides for the procedure for posting funds, in relation to a bank loan, and it does not apply to other banking operations on cash. In particular, it does not extend its effect on operations with precious metals and operations with securities.
The position indicates the limits of its action. It does not apply to legal relations between the Bank of Russia and banks on the placement of cash. These legal relations are governed by the legislation of the Russian Federation and the relevant regulatory acts of the Bank of Russia. It also does not regulate legal relations on the opening and maintenance of bank accounts of banks. The situation does not regulate the operations to provide (placement) by banks of funds carried out using bank plastic cards of the bank * (332), as well as the Bank's operations of the Bank in securities (bonds, deposit certificates, bills and other debt obligations of issuers). These operations are regulated by the legislation of the Russian Federation and the relevant regulatory acts of the Bank of Russia. * (333)
It is enshrined in the procedure for the implementation of operations to provide (placement) by banks by legal and individuals, regardless of whether they have or do not have calculated, current, deposit, correspondent accounts in this bank, and return (repayment) by customers of banks received, As well as accounting of these operations. * (334) In essence, this is the regulation of technology for one of the main banking operations - bank lending.
The Regulation notes that before the Bank's adoption of a decision on the feasibility of granting funds to the Client, the creditor Bank should be carefully examined by all documents submitted by the Borrower (copies of constituent documents, accounting, statistical and financial statements (balance and application to it, deciphering certain performance indicators); business -plan, marketing plans, production and management, forecast of the borrower's cash flows with its counterparties for the period of repayment of the funds provided (graph of income and payments of the Client-Borrower); technical and economic rationale, characterizing the payback period and the level of profitability of a credited transaction), as well as to check the accuracy of credit transactions, examine the credit history of the client-borrower, analyze the question of the availability or absence of debt on the obligations of the Client-Borrower, including overdue, check the powers of the Customer's Officials - a borrower signing a contract for Retalization of funds, check availability and quality of ensuring (pledge, bank guarantee, guarantee, insurance policy, etc.), evaluate the information obtained.
If the client-borrower is not serviced in a potential bank bank (i.e., it does not have a correspondent, settlement, current account), then besides the above documents and information, it should be obtained from samples of signatures of persons authorized to sign relevant treaties / Agreements with the Bank and dispose of the cash of the Borrower Organization.
In a position, in particular, it is said that before deciding on the feasibility of granting funds should be organized and conducting interviews with a potential borrower of the bank. Such interviews with the client-borrower should be carried out on a regular basis and later during the term of the contract.
The provision says that the decision on the provision of funds is recommended to be taken on the basis of the analysis of the financial condition of the borrower; level of its credit solvency; quality and liquidity of the proposed borrower; calculating the adequacy of the provisions of the provisions for the placed funds, taking into account the interest due and the possible costs of the creditor bank for obtaining execution; Risk assessments related to the lending to a specific client (especially in the provision of blank loans), including credit risk analysis, currency risk (when granting funds in foreign currency), sectoral risk (analyzed the state of the industry to which the borrower belongs to) and other risks . After making a decision on the provision of funds by authorized experts of the creditor bank, the text of the contract is prepared.
The situation states that the registration of a cash transaction is carried out by concluding a relevant contract between the Bank and the Client of the Bank (general credit agreement / agreement, a loan agreement / agreement, deposit agreement, a loan agreement, a bank account agreement, another contract for the placement of funds drawn up Taking into account the requirements of the Civil Code of the Russian Federation). The contract / agreement defines the main conditions for the provision and refund (repayment) of the cash by the Bank. At the same time, the Credit Agreement may define the goals for which a loan is provided.
All the documents submitted by the Client-Borrower received by the creditor bank answers to the requests of the creditor bank, as well as documents confirming the fact of deployment (provision) of funds, including the Agreement / Agreement, additional agreements to it, contracts of pledge and other contracts and Copies of orders are stored in the borrower dossier, a lender bank.
A document indicating the fact of the provision of funds to the Customer is an extract for correspondent, calculated, the current account of the client, as well as a loan or interbank deposit account or account for the accounting of other placed funds.
The bank determines the procedure for the formation of the borrower customer files and organizes their storage for at least 5 years, and after the established storage time expires them to the archive, where the customer files are stored in the prescribed manner. This work is carried out under the leadership of the Chief Accountant and the head of the relevant division of the Bank, whose competence includes the placement of funds from customers.
As one of the conditions of the loan agreement should include the right of the Bank to terminate the loan agreement early in the event of a violation by the Committee-Borrower provided for by a loan agreement. The client-borrower can also be a contract with the right due to reasonable reasons not to use a loan (credit line) in whole or in part. The initially agreed value of the loan (credit line) subsequently can also be adjusted by the parties (the specified condition should provide in a loan agreement).
In accordance with the terms of the concluded Agreement / Agreement, the Bank makes cash deployment from customers. At the same time, the opening of the respective loan and interbank deposit accounts, accounts for the accounting of other placed funds are accompanied by the notification of tax authorities in the prescribed manner.
As one of the examples of the placement (provision) of funds on a syndicated (consortical) basis, the Bank's participation in the association (consortium) of several banks may be considered to provide a large loan to a large borrower on the basis of an agreement between credit banks on a loan on a syndicated (consultant ) The basis of the Client-borrower and the relevant loan agreements concluded by each of these creditors' banks with the Client-borrower.
As stated in the position, the authorized division of the bank should organize daily control over the repayment periods (return) by borrowers' accounts with the cash and payment of interest on them, including the state of overdue debt on loans of borrowers, and take the necessary measures to her repayment.
The provision provides * (335) that "under the placement (provision) by the Bank of the cash is understood to the conclusion between the bank and the client of the Bank of the Agreement drawn up with regard to 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 transmits funds on terms of payability, urgency and repayment, and the Bank's Client returns the received funds in accordance with the terms of the contract. "
Note that pointing out the concept of placing funds in this way the provision means a transaction between the credit institution and its client, as the basis of the procedure regulated by it by the banking operation. But it does not regulate the transaction as such, but only regulates the technology of the activities of the Credit Organization for the placement of funds, that is, a banking operation.
The placement (provision) of funds can be carried out both in the 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 that determine its policy on the placement (provision) of funds, as well as accounting policies and approaches to its implementation. It should develop and approve the following documents: (a) Documents Definitions of decision-making procedures for deploying cash; b) Documents Determining the distribution of functions and powers between subdivisions and officials of the Bank, b) documents including domestic rules for the placement of funds, including the rules for lending to the Bank's customers. Their content should not contradict the current legislation of the Russian Federation, the regulatory acts of the Bank of Russia and the Regulation.
Another point to pay attention to when making a decision by a credit institution about the issuance of a loan is the requirements of the Bank of Russia against the so-called associated lending.
In a letter of the Bank of Russia, a letter of the Bank of Russia dated January 17, 2005 N 2-T "On the commission of transactions with the banks and assessment of risks arising from their commission" after all, along with banking standards, to contain both civil law standards, What in our opinion is unacceptable.
Apparently, such issues are important, but they need to be solved by non-regulatory acts 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 the Company, in relation to loan agreements of banks, includes only issues of approval of major transactions and transactions in which there is an interest.
As for other issues, they can be referred to the management of the Board of Directors (Supervisory Board) by limiting the competence of the executive body, but only in the permissible limits. And the Bank of Russia is not entitled to establish the norms of civil law, including to regulate the competence of the General Meeting of Shareholders / Participants, the Board of Directors of the credit institution. Here, too, as we see, among other things, there is a mixing of banking and civil legal relations.
The essential element of the banking operation on the placement of funds is the risk management and the creation of reserves. In the instructions of the Bank of Russia dated January 16, 2004, N 110-and "On mandatory regulations of banks" (as amended) provides for a number of standards that are designed to limit credit risks. Standards are calculated by the formulas that are given in the same regulatory act.
In accordance with the norms provided for in the Federal Law "On Banks and Banking Activity" (Art. 24), in order to ensure financial reliability, a credit organization is obliged to create reserves (funds), including under the impairment of securities, the procedure for the formation and use of which is established Bank of Russia. The minimum sizes of reserves (foundations) are established by the Bank of Russia. The amounts of deductions to reserves (funds) from profits to taxation are established by federal laws on taxes. * (336)
The credit institution is obliged to carry out the classification of assets, highlighting dubious and hopeless debts, and create reserves (funds) to cover possible losses in the manner established by the Bank of Russia.
The credit organization 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 importance of which are established by the Bank of Russia in accordance with the Federal Law.
The credit institution is obliged to organize internal control, providing an adequate level of reliability corresponding to the nature and scope of operations. * (337)
7). Creating reserves for possible losses on loans, loan and equated debt
The procedure for the creation of reserves on loans stipulated by the Federal Law is governed by the Regulation of the Bank of Russia of March 26, 2004 N 254-P "On the procedure for the formation of credit organizations of reserves for possible losses on loans, on loan and equivalent debt" (as amended by the Bank of Russia RF of 20.03.2006 N 1671-y) (hereinafter referred to as the position).
This provision establishes the procedure for the formation of loan organizations of reserves for possible losses on loans, on loan and equivalent debt (hereinafter referred to as loans), to which the monetary requirements and requirements arising from transactions with financial instruments. The list is given in Appendix 1 to this Regulation.
In addition, the situation provides for the features of the implementation by the Bank of Russia oversight of compliance with credit organizations, the procedure for forming reserves for possible losses on loans.
Banks have the right, except for 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 arrears in interbank loans and deposits). * (338)
The amounts of deductions to reserves for possible losses on loans formed in this order, in accordance with the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", are recognized as expenses taking into account the restrictions provided for in the same article. Accordingly, in the NC there is article 292 "Expenditures on the formation of bank 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 the composition of non-dealerization expenses during the reporting (tax) period.
The amounts of reserves 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 hopeless debt on loans and debt equivalent to loan can be transferred to the next reporting (tax) period. At the same time, the sum of the newly created reserve should be adjusted to the amount of reserve residues of the previous reporting (tax) period. In case the amount of the newly created in the reporting (tax) period of the reserve is less than the amount of the reserve of the previous reporting (tax) period, the difference is subject to the inclusion of the bank's non-revenue income on the last day of the reporting (tax) period. If the sum of the newly created reserve is larger than the amount of the reserve of the previous reporting (tax) period, the difference is subject to the inclusion of banks in the last day of the reporting (tax) period.
The position contains a number of changes that distinguish it from the previously active instruction N 62a. The most significant includes the following:
1) expanded a list of loans, loan and equated debt, possible losses for which is the object of formation of reserves.
The list of loans includes the requirements of the credit institution on the transaction acquired (assignment) rights (requirements); on the mortgage acquired on the secondary market. The same list includes requirements for sales transactions (purchase) of financial assets with a delay of payment (supply of financial assets); According to paid letters of credit (in terms of uncovered export and import letters of credit). There are also included requirements for the counterparty on the return of funds in the second part of the transaction for the acquisition of securities or other financial assets with the obligation of their backward alienation if the securities that are the subject of this transaction are notchive in accordance with the regulatory acts of the Bank of Russia (not appeal in the organized market); on financial lease operations (leasing);
2) Five classification categories of quality are established
3) the requirement to assess credit risk on loans issued on a permanent basis;
4) the framework requirements for internal documents of the credit institution on the classification of loans and reserve formation are established;
5) the "fork" standards of deductions to the reserve are established, which allows credit institutions to more accurately assess losses on loans;
6) It is provided that on loans assigned to the first category of quality (standard loans), the reserve is not mandatory;
7) As the main in assessing the quality of loans and determining the size of the reserves, an approach based on professional judgment is provided. It is envisaged that professional judgment is made according to the results of a comprehensive and objective analysis of the activities of the borrower, taking into account its financial position, the quality of service by the debt borrower on the loan, and the entire available credit institution of information on other aspects of the borrower's activities;
9) A list of loans for which is primarily monitored by the correctness of their assessment and determining the size of the reserves within the internal control system;
10) A list of loans that cannot be classified is better than in Quality Categories II and III;
11) the framework requirements for the formation of reserves on the portfolio (portfolios) of homogeneous loans are determined;
12) the concepts of I and II Quality Quality Categories, used for the formation of reserves, determines the list of types of collateral, which can be attributed to the provision of Q quality I and II, and the procedure for the formation of a reserve for loans taking into account the specified security is established;
13) Several simplifies the procedure for the write-off of unrealistic loans for the recovery of loans, especially small, as well as united in a portfolio of homogeneous loans, due to the formed reserve;
In order to determine the size of the estimated reserve due to the action of credit risk factors, loans are classified on the basis of professional judgment in one of five categories of quality:
Quality category (non-standard loans) - moderate credit risk (the probability of financial losses due to non-fulfillment or improper performance by the borrower of the loan obligations causes its impairment in the amount of from one to 20 percent);
III quality category (dubious loans) - a significant credit risk (the probability of financial losses due to non-fulfillment or improper performance by the borrower of the loan obligations causes its impairment in the amount of 21 to 50 percent);
IV quality category (problem loans) - high credit risk (the probability of financial losses due to non-fulfillment or improper performance by the borrower of the loan obligations causes its impairment in the amount of 51 percent to 100 percent);
V (lower) quality category (hopeless loans) - there is no probability of returning loan due to the inability or failure of the borrower to fulfill the obligations on the loan, which necessitates the full (in the amount of 100 percent) loan impairment.
The reserve is formed within the amount of the principal debt (book value of the loan). In the amount of the principal debt, they are not included: due to law, customs turnover or contract payments in the form of interest for the use of loan, commission, penalties, as well as other payments in favor of a credit institution arising from the contract (hereinafter referred to as interest on the loan).
The reserve is formed in the currency of the Russian Federation, regardless of the currency of the loan.
The requirements of these Regulations do not apply to:
financial assets reflected in accounting at market value for which revaluation is carried out in accordance with the regulatory acts of the Bank of Russia;
financial assets that are elements of the calculated base in accordance with the provision of the Bank of Russia of July 9, 2003 N 232-P "On the procedure for the formation of credit organizations of reserves for possible losses." It is also provided for the procedure for the formation of the reserve in relation to the residents of offshore zones. * (339)
In the Tax Code of the Russian Federation there is an article 292 "Expenditures on the formation of bank reserves". It provides that banks are entitled, in addition to reserves for doubtful debts, provided for in Article 266 of the Code, to create a reserve for possible losses on loan and equated debt (including arrears in interbank loans and deposits.
The amounts of deductions to reserves for possible losses on loans 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 a consideration of the restrictions provided for in this article of the Tax Code of the Russian Federation.
In determining the tax base, expenses are not taken into account in the form of deductions to reserves for possible losses on loans formed by banks under the debt, applied to the standard, in the manner established by the Central Bank of the Russian Federation, as well as to reserves for possible losses on loans formed under promissory bills, With the exception of banks taken by banks, third-party bills, according to which the protest is issued in the default.
The amounts of deductions to the reserve for possible losses on loans are included in the composition of non-evaluation costs during the reporting (tax) period.
The amounts of reserves 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 hopeless debt on loans and debt equivalent to loan can be transferred to the next reporting (tax) period. At the same time, the sum of the newly created reserve should be adjusted to the amount of reserve residues of the previous reporting (tax) period. If the sum of the newly created in the reporting (tax) period of the reserve is less than the amount of the reserve residue of the previous reporting (tax) period, the difference is subject to the inclusion of the bank's non-deactive revenues on the last day of the reporting (tax) period. If the sum of the newly created reserve is greater than the amount of the balance of the previous reporting (tax) period, the difference is subject to the inclusion of banks in the last day of the reporting (tax) period.
I. Banking market for attracting Funds are submitted by the following banking services specified in the Bank's Law:
a) attracting funds for individuals and legal entities into deposits (demand and for a certain period);
b) attraction to deposits and placement of precious metals;
c) Trust managing money and other property under a contract with individuals and legal entities.
In banking terminology, cash involvement services are called passiveoperations.
A) the conditions of attraction Den funds - urgency, repayment and pay. Legally banking operations to attract funds draw up contracts Bank deposit and a number of contracts related to the placement of own securities by the Bank.
The content of the bank deposit agreement is bank duty to accept from the investor in cash on the conditions provided for by the Treaty return her depositor for his requirement (for demand before demand) or after the expiration of the contribution or the onset of the event due to the agreement (for term deposits) and pay Mounted in the Treaty interest.
In banking practice it is customary to conclude a bank deposit agreement with individuals, and with legal entities - a deposit agreement, although the Civil Code does not make differences between the deposit and the banking contribution agreement. However, the legislative regulation of the bank deposit agreement (deposit) concluded by the Bank with a legal entity and an individual has a number of significant differences aimed at providing additional guarantees to individuals in bank deposit agreements. For example, if the bank deposit agreement is concluded with an individual for a certain period, the depositor has the right to get the amount of the deposit early, and the limitation of this right in the contract is invalid (paragraph 2 of Article 837 of the Civil Code of the Russian Federation). With respect to the contributions of legal entities, the contract may be provided for (and as a rule, it is envisaged) the prohibition of their early seizures. A bank deposit agreement with an individual is recognized public contract (paragraph 2 of Article 834 of the Civil Code of the Russian Federation). The right to attract the deposits of individuals is the banks received special for that permission (license) of the Bank of Russia and not earlier than after two years from the date of state registration of the bank (Part 3 of Article 36 of the Bank of Banks). When bankruptcybank Requirements Requirements - individuals are satisfied primarily (paragraph 1 of Article 49 of the Federal Law "On Insolvency (Bankruptcy) of Credit Organizations"). In addition, the relations of the parties under the bank deposit agreement concluded with the citizen the provisions of the Law on Consumer Protection. In the future, the contracts of the banking contribution with individuals will be called "deposits", and with legal - "deposits".
Deposits and deposits are accepted by banks for a certain period. (Urgent deposits) and on the terms of payments on the first requirement (demand deposits).
On the amount of the deposit (deposit), the Bank charges interest in the amount and procedure established by the Treaty. If the percentage amount of the contract is not established, the Bank pays interest in the amount of the accounting rate of the Central Bank of the Russian Federation (paragraph 1 of Article 838 of the Civil Code of the Russian Federation). If other frequency of interest payments on the deposit is not established by the contract, the Bank pays interest quarterly separately from the amount of the contribution, and interest unlaced by the contributor is classified as a deposit amount (capitalized) (paragraph 2 of Article 838 of the Civil Code). Unless otherwise established by the contract, interest for the first and last day of the deposit are not charged.
Unlike a loan agreement, which is usually issued in practice when providing security (pledge, guarantee, guarantee, etc.), deposits and deposits are usually involved in banks without providing security. Meanwhile, the Civil Code of the Russian Federation provides that "banks are required to provide a refund deposits of citizens way mandatory insurance"(Article 840), but the law that determines the procedure for compulsory insurance of the contributions of citizens has not yet been adopted. According to the deposits of citizens in banks, in the authorized capital of which the share of the state, the subjects of the Russian Federation, municipalities prevails, they carry subsidiary responsibility, t ., We undertake to pay to depositors the amount of obligations of such banks on deposits not paid by the banks themselves (paragraph 1 of Article 840 of the Civil Code of the Russian Federation).
Deposits attracted by banks from other banksIt is possible to equally attribute both deposits and a loan agreement, since in such transactions both on the lender side and on the side of the debtor is a credit institution. In practice, such contracts are called called contracts of interbankovsky. In the banking terminology, the market of interbank short-term loans not providing for deferred to the moment of granting a loan, referred to market "Depot".
Just as when making the bank of deposits and deposits, when issuing banks and distribution (placement) of own securities - bonds, savings (deposit) certificates, bills - Banks attract funds for individuals and legal entities on urgency, repayment and payability. Release banks shares and their accommodation can be attributed to the services of banks to attract funds only in part (do not have guarantees of revenue; the basic value of shares for investors is not possible in possible dividends, but on the right to participate in the bank management; the right to receive only the liquidation value of its shares and In the event of the insolvency of the bank, they probably lose their investments).
· Bonds- These are emission securities that enshrine the rights of their owners to receive from the issuer of bonds within the provisted period of their nominal value or other property equivalent. In essence, the relationship of the owner of the bond and its issuer is the relationship of the loan. The issue of bank bonds is registered by the Bank of Russia. In practice, bank bonds are relatively rare.
· If a loan agreement can be issued using bonds, then with savings (deposit) certificatethe contract deposit agreement (deposit) is issued. Savings (deposit) Certificate is a valuable paper certifying the amount of the contribution made to the Bank, and the rights of the certificate holder to receive upon the expiration of the amount of the contribution and due to the interest certificate in the Bank. Savings (deposit) certificates are divided into namedand bearer. The turnover of deposit certificates expressed in foreign currency is limited, since such certificates relate to currency values \u200b\u200bby virtue of the currency regulation law. The relations of the holder of the savings (deposit) certificate and issued its bank apply rules on the bank deposit agreement.
· Bank bills Hat a special place in the banking market market. Bill, unlike a savings (deposit) certificate, does not make out any other contract, but certifies uncommon The amount of the credentials to pay the amount of money specified in the bill of exchange provided for by the exchange rate. Russian banking practice is commonly used simple bills (solo). A bill may provide for interest on the bill (interest notes) or just a bill ( discount notes), Bank bill can serve as a pledge, can be provided as an explicable creditor of the random holder, etc. The appeal of bank bills, as well as bills of other issuers, is governed by special legislation ( Federal Law of March 11, 1997 N 48-FZ "On the Transferred and Simple Week").
B)Precious metals are classified as legislation to currency values And from an economic point of view, they are an asset of a special kind, since 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 agreementswhich are not named either in the Civil Code of the Russian Federation, nor in the federal law "On precious metals and precious stones", nor in other legislative acts. Regulatory and legal regulation of the metal account regime is carried out exclusively on by a submission level.Under metal accounts are understood accounts opened by credit institutions to customers to carry out operations with precious metals. In this case, such a credit organization is obliged to have license Bank of Russia to make the specified operations. Metal accounts are divided into two types: disclinished metal bills (Accounting for precious metals without specifying their individual signs, as well as for the implementation of operations to attract and place the specified metals) and metal accounts responsible storage (Accounting for precious metals transmitted to responsible storage in a credit institution with preservation of their individual signs).
IN) Services of banks confidential cash management and other property of individuals and legal entities are proposed mainly in carrying out credit organizations market securities. This service is provided as within individual Treaty with the client and within multilateral Treaty On combining securities of various owners into a single property complex - general Bank Management Fund (Offhouse).
The construction of trust management appeared in Russian legislation only with the introduction of a new GK. In the economic sense, the disadvantage of the institution of trust management is for banks that their income is limited to a reward-defined agreement. The client, although it has the ability to receive an increased profitability from its investments, but at the same time bears the risk of possible losses.
II. Market of services by accommodationattracted funds in the most profitable segments of the economy are submitted by the following banking services specified in the Bank's Law:
1) placement of cash on their own behalf and at its own expense;
2) issuance of bank guarantees;
3) issuance of guarantees for third parties providing for the fulfillment of obligations in monetary form;
4) acquisition of the right of claim from third parties to fulfill the obligations in cash;
5) Leasing operations.
AND) Services of banks for cash on his 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 his face as owner Money.
Special place among active operations is issued by banks loans. The loan agreement is a type of loan agreement with a special subject (credit institution) on the lender side. According to the loan agreement, the credit organization undertakes provide Cash to the borrower on the conditions provided for by the Treaty, and the borrower undertakes return The resulting amount of money and pay interest For the use of the loan.
To conclude a loan agreement, it is sufficient to achieve an agreement only the amount of creditBecause all other conditions can be determined on the basis of the law.
Provision There may be a pledge of the property of a borrower or a third party, a bank guarantee, a third party guarantee, guarantees and guarantee of state administration bodies of the Russian Federation, its subjects and municipalities. As a rule, the role of credit security in banking practice performs insurance Insurance Insurance Insurance Risk.
Fairly distributed service on acquisition by bank bills and bonds third parties. The disadvantage of such a form of provision by credit institutions for the placement of funds is that securities obligations cannot be provided with the pledge of property. The only form of ensuring in this case serves aval - bill guarantee. At the same time, securities acquired by the Bank may be free to them. Some securities (bills of large enterprises, state and municipal bonds) have market quotes, which increases their liquidity.
Often, banks carry out services for the placement of funds by conclusion transactions "repo", By virtue of which the Bank acquires a certain asset from the client (securities, gold, etc.), which is not required to the client for ordinary economic activities, and at the same time concludes an inverse deal for the sale of the same asset at a higher price. The difference in prices in the "repo" transactions for the purchase and sale of the appropriate asset is a bank margin. Transactions of "repo" due to the peculiarities of tax legislation are used mainly in providing funds to non-residents.
B) Bank law provides for banks leasing operations (financial lease agreement). The essence of these operations is reduced to the fact that the Bank provides in the long-term lease to its client-leaser necessary for the latest equipment, and he pays such a rent that covers for the lease period and bank interest, and the cost of equipment.
There are three basic leesing type: financial, operational and return.
For financial Lessing The term of rent is close to the service life of the equipment. Under the terms of financial leasing, the equipment goes from the lessor in ownership The lessee only after paying all leasing payments. Thus, for the bank, such an asset is more liquid, since it is not part of the property of the debtor, is not at risk of its insolvency and does not require judicial procedures for the recovery and sale of this property in the event of a violation by the debtor (lessee) of its obligations.
Returnal leasing It is that the lessee is both the seller of the equipment. That is, the bank leaser first acquires certain equipment from the lessee, and then he transmits it to the lease equipment. Thus, the title of property on equipment is changing while maintaining the possibility of its production use for the lessee. Returnal leasing allows you to achieve the same result as lending to the security of equipment: the lessee receives the necessary credit funds, and the bank-lessor places money into secured revenue assets.
Operational leasing is used mainly for such equipment that can be rented or profitable to sell after a short period of operation. The difference from other types of leasing is that the period of leasing is significantly less than the period of possible use of equipment (car leasing). The main difference of lease from rent is a special acquisition of the leaser of the property for renting it to the lessee.
IN) Services of banks issuing bank guarantees and guarantees for third partiesproviding for the fulfillment of obligations in monetary form, are provided to provide the Bank's customer obligations to third parties. As a result of the issuance of a bank guarantee, the Bank does not decide the funds to the Client, but assumes the risk of its obligations to the client.
The bank guarantee differs from the guarantee of the bank. First, it is the main obligationrather ankcessor, as a guarantee (valid even with the invalidity of the main obligation; the period of bank guarantee does not depend on the limitation period for the main obligation). Secondly, the bank guarantee carries the bank solidarityWhile guarantee may be provided for the subsidiary responsibility of the bank. Thirdly, the payment of funds for bank guarantee is carried out on the basis of only the requirements of the beneficiary with the application of the documents specified in guarantees, and the Garant Bank is not entitled to determine the payment of any additional requirements or refer to the fulfillment of the basic obligation. And, finally, if the right of regression at the guarantor who paid the debt for the obligations of the principal, arises on the basis of the law, to emerge the right of regression, a bank-guarantor to the principal for a bank guarantee requires an indication of this in a bank guarantee.
The law provides for only two cases when the bank may refuse to pay Amounts: (a) If the requirement or the documents attached to it do not comply with the conditions of the bank guarantee or (b) if the requirement is presented to the Bank after the bank guarantee period (paragraph 1 of Article 376 of the Civil Code). If the bank knows that the main obligation is already executed, it does not exempt it from the payment: he must report this to the beneficiary and the principal, and when receiving from the beneficiary, the re-claim must pay him the amount of bank guarantee.
D) Services of banks on the acquisition of rights of the requirements of the fulfillment of obligations in cash from third parties are otherwise called factoring operations (Financing under the assignment of money requirements). The economic content of these services is that the credit organization acquires the rights of its customers to their debtors and thus carries out customer lending. Factoring is very similar to CESSIA (assignment of the right of claim), but is not such, since the legislator does not provide for the possibility of even optional application to the relationship of financing under the concession of the monetary requirement of the regulations on the cessia. Compared to Cessia, factoring has the following features: (a) an organization with an appropriate license acts as a financial agent (factor); (b) the prohibition of the transfer of the rights of the lender to another person without the consent of the debtor, established by law or the contract, does not make the assignment of the rights of the financial agent under the factoring agreement invalid (paragraph 1 of Article 828 of the Civil Code of the Russian Federation); (c) Subsequent assignment of the right of claim with a financial agent is allowed if this is provided for in the factoring agreement (Article 829 of the Civil Code of the Russian Federation).
It is accepted reverse(the client is responsible for the financial agent not only for the reality of the current money requirements, but also for its actual execution of the debtor; in this case, the additional benefit is over the amount of funding, and the remuneration of the financial agent is subject to payment by the Financial Agent of the Client) and unpensive Factoring (the client responds to the financial agent only for the reality of the inferior requirement, all additional benefits act to the ownership of the agent).
Conditional financing contract for the concession of money requirementsBy which it proceeds to a financial agent if the client does not fulfill its obligations to the financial agent.
The Bank's income in factoring operations (a financial agent remuneration) may be expressed: (a) in the difference between the amount of funding provided to the Client, and funds received from the debtors in pursuance of monetary obligations or (b) in a fixed amount established in the factoring contract.
The placement of funds attracted to 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 banks on banks. But there it is only named. And the specific rules for holding this banking operation are envisaged by the Regulation of the Bank of Russia No. 54-p.
As already mentioned in ch. Two textbooks, doctrinal in any banking operation there are always three components (operations of operation, technology, operational risk management).
In this case, in relation to the placement of money, there must also be these three components, but only filled with specific content.
In this banking operation, the definition should be: a) the object and purpose of the banking operation; b) the procedure for providing and repayment of funds, including accounting and both; c) compliance with financial standards when issuing and maintaining a loan, creating reserves for loan debt. Let us analyze this banking operation from the standpoint by me the methodology for studying the content of the banking operation.
The first two components are regulated by the Regulation of the Bank of Russia No. 54-p. The third component is regulated by other regulatory acts of the Bank of Russia, i.e. Those who regulate economic standards and the creation of reserves on loan and equated debt.
In the position of the Bank of Russia No. 54-p clearly formulated the second component of the banking operation, those. regulated cash issuance credit organizations I. return them in a credit institution.
Pay attention to the name of this provision of the Bank of Russia No. 54-p. In the title of this banking operation, not only the provision of (placement) by credit organizations of funds, but also on their return (repayment). Because the procedure for returning funds back to the credit institution (repayment) is also a banking operation.
We turn this point of attention for the reason that in practice it is often distinguished by this order. Banks issue credits to citizens, in particular mortgage, and in the case of their non-return or delay of payments, they produce the assignment of the rights of claims. Moreover, the requirements are inferior not to the Bank, but any organization. Meanwhile, if such an organization has no banking license, it turns out that the Bank violates the requirements of the Bank of Russia No. 54-P in the event that it is inferior to it the rights of the credit agreement.
In paragraph 1.1, the provisions of the Bank of Russia No. 54-p. It is determined that it provides for the procedure for carrying out operations but to provide (placement) by cash banks to customers, including other banks - legal and individuals (and, regardless of whether they have There are no estimated, current, deposit, correspondent accounts in this bank), and returning (repayment) by customers of banks received, as well as accounting records of these operations.
Now we will raise the question of what relationship does not apply to the Bank of Russia No. 54-p. It is determined in the Regulation that it disseminates its effect on the relationship between the Bank of Russia and banks for the placement of cash. These relationships are governed by the legislation of the Russian Federation and the relevant regulatory acts of the Bank of Russia.
In addition, the position of the Bank of Russia No. 54-and does not regulate relations on the opening and maintenance of bank accounts. This procedure is regulated by the law and relevant instructions of the Bank of Russia, in particular, the instruction of the Bank of Russia No. 153-and.
This moment in the position of the Bank of Russia No. 54-P is important, if we consider that the loan can be provided in the form of overdraft. This means this provision in this regard is also not applicable.
In the same place in paragraph 1.5, the provisions of the Bank of Russia No. 54-p determined that its norms do not regulate operations to provide (placement) by banks of funds carried out using bank plastic cards of the Bank, as well as the Bank's operations for the placement of the Bank's funds in securities (bonds , deposit certificates, bills and other debt obligations of issuers). These operations are regulated by the legislation of the Russian Federation and the relevant regulatory acts of the Bank of Russia, in particular, in relation to bank cards - the provision of the Bank of Russia No. 266-p. This moment is also legally important.
Banks issue loans to their customers using bank cards. Consequently, the position of the Bank of Russia No. 54-P in this regard also does not apply if the Bank applied a credit card for issuing a loan. At the same time, the question arises about how the concepts "issuing a cash loan amount through cash" and "issuance of a loan through an ATM" correspond to the physical person. The literature notes that in relation to individuals, the expression "cash through the bank's cash register" can also be applied to ATMs (if we assume that the ATM is a cash division of the bank). Here, however, a special order operates: in accordance with paragraph 1.5, the provisions of the Bank of Russia No. 54-p said document "does not regulate the operations for providing (placement) by banks carried out using bank plastic cards."
As already noted, the second component of this banking operation is regulated in detail. The provision of (placement) by the Bank of Cash is carried out in the following order:
- - to legal entities - in non-cash, by crediting funds for the calculated or correspondent account / subaccount of the Customer-borrower, open on the basis of a bank account agreement. The same order applies and in providing funds to pay for payment documents and for paying wages;
- - individuals - in non-cash order. The money is credited to the bank account of the client-borrower of an individual, under which in order to establish the Bank of Russia No. 54-P, it is also understood as an account on accounting for the amounts of deposits of deposits (deposits) of individuals in a bank or cash through the Bank's cashier (clause 2.1. 2). I think that "the account for accounting by the amount of deposits attracted by the Bank (deposits) of individuals in the bank" is an accounting account. Therefore, it seems to me that the specified formulation of this provision is not correct. The bank must provide an individual to the physical person by crediting them on a bank account of an individual, because an individual is not entitled to dispose of accounting accounts. An individual can dispose of its bank account. And in paragraph 2.1.2. The provisions of the Bank of Russia No. 54-P are stated by the National Assembly of the Banking Account, and the invoice on which the amounts of deposits attracted by the Bank of individuals attracted by the Bank are conducted.
As for loans in foreign currency, in paragraph 2.1.3, the provisions of the Bank of Russia No. 54-11 envisages that the provision of (accommodation) of funds in foreign currency to legal entities and individuals is carried out by authorized banks in non-cash.
What methods are provided with cash to the Bank's customers, "this question was reflected in the norms of paragraph 2.2 of the Bank of Russia No. 54-11.
Providing (accommodation) by the Bank of Cash to Clients of the Bank is carried out in the following ways:
- - first, it can be a one-time crediting of funds to those specified in paragraph 2.1 of the provisions, bank accounts or issuing cash to the borrower - a physical face;
- - Secondly, the money can be provided with the help of the opening of the credit line. The situation determines that an agreement is concluded / contract, on the basis of which the client-borrower acquires the right to receive and use during the course of money, subject to one of the following conditions (clause 2.2 of the provisions):
- a) the total amount of funds provided to the Customer should not exceed the maximum size (limit) defined in the Agreement / Agreement - the "Limit of Issuing";
- b) During the period of the agreement / contract, the size of a lump-sum debt of the Customer-borrower does not exceed it by this agreement / the Limit Agreement - "Debt Limit".
At the same time, credit organizations are entitled to limit the amount of funds provided by the Client Borrower within the open Last Credit Line, by simultaneously inclusion in the appropriate agreement / contract of both the above conditions, as well as using any other additional conditions, with the simultaneous implementation of this submission , "B" requirements.
The conditions and procedure for opening the client-borrower of the credit line are determined by the parties either in a special general (framework) agreement / contract, or directly in the contract for the provision of cash.
The discovery of the credit line is the conclusion of the contract for the provision of funds, the conditions of which in its economic content differ from the terms of the contract providing for a one-time (one-time) provision of funds to the Borrower Customer.
In addition, in the methodological recommendations from 05.10.1998 No. 273-T to the Regulation of the Bank of Russia No. 54-P (hereinafter referred to Borrower Documents (copies of constituent documents, accounting, statistical, financial statements, balance and annexes to it, deciphering certain performance indicators).
In the methodological recommendations, it was determined that before issuing a loan, it is necessary to analyze the business plan, marketing plans, production and management, the forecast of the borrower's cash flows with its counterparties for the repayment of the funds provided (schedule of receipts and payments of the Client-Borrower). In addition, it is necessary to analyze the feasibility study of the loan transaction. The main thing is to check the accuracy of the credited transaction, study the credit history of the Client-Borrower, analyze the question of the presence or absence of debt on the obligations of the Client-Borrower, including overdue, check the authority of the Customer's Officials, signing a cashing contract for the provision of funds, check availability and the quality of ensuring (pledge, bank guarantee, guarantee, insurance policy, etc.), evaluate the information obtained.
In cases where the client-borrower is not serviced in a potential bank bank (i.e., there is no correspondent, settlement, current account in it), in addition to the above documents and information, it should be obtained from a card samples of signatures of persons authorized Sign relevant transactions with a credit institution and dispose of the cash of the borrowing organization.
In particular guidelines, in particular, it was determined that before deciding on the feasibility of granting funds should be organized and conducting interviews with a potential borrower of the bank. Such interviews with the client-borrower should be carried out on a regular basis and later during the term of the contract.
As a decision is made to issue a loan - a question that is enshrined in the methodological guidelines. The decision is made on the basis of the analysis of the financial condition of the borrower; level of its credit solvency; Quality quality and liquidity; Calculation of the adequacy of secure funds by cash, taking into account the interest due and the possible costs of the creditor bank on obtaining execution; Risk assessments related to the lending to a specific client (especially in the provision of blank loans), including credit risk analysis, currency risk (when granting funds in foreign currency), sectoral risk (analyzed the state of the industry to which the borrower belongs to) and other risks .
After making a decision on the provision of funds by authorized experts of a credit institution, the text of the contract is prepared. Then the corresponding contract must be concluded. This may be a general credit agreement, a loan agreement, a deposit agreement, a loan agreement, a bank account agreement, another contract for the placement of funds.
The contract defines the main conditions for the provision and return (repayment) of the cash by the Bank of Cash. It should define the goals for which a loan is provided.
Documents submitted by the borrower received answers to the requests of the credit institution, as well as documents confirming the fact of the provision of funds, including the Treaty / Agreement, additional agreements to it, contracts of pledge and other contracts and copies of orders, should be kept in a borrower dossier led by a bank creditor.
A document confirming the fact of granting funds to the Customer is an extract for correspondent, calculated, the current account of the client, as well as a loan or interbank deposit account or account for accounting for other placed funds.
The credit institution determines the procedure for the formation of the borrowers' customer dossiers and organizes their storage for at least 5 years. After the established storage time expires them to the archive, where the customer files are stored in the prescribed manner.
Methodical recommendations are prescribed that the appropriate division of the credit institution is obliged to organize daily control over the repayment periods (return) by the banks-borrowers provided by their funds and the payment of interest on them, including for the state of overdue debt on loans for customer borrowers, and take the necessary measures to His repayment.
The Bank is obliged to develop and approve the relevant internal documents that determine its policy on the placement (provision) of funds, as well as accounting policies and approaches to its implementation: (a) Documents that determine the decision-making procedures for deploying cash by the Bank; b) documents defining the distribution of functions and powers between divisions and officials of the Bank; b) Documents that include internal rules for the placement of funds, including the rules for lending to the Bank's clients.
In a letter of the Bank of Russia dated January 17, 2005 No. 2-T "On the commission of transactions with the banks related to the banks and the risk assessment of the risks arising from their commission," along with banking standards, there are also the norms of civil law, which, our look is unacceptable.
Concerning the third component of the banking operation (Compliance with economic standards and the creation of reserves for loans), then they are governed by other regulatory acts of the Bank of Russia. Recall that the essential element of the banking operation on the placement of funds - risk management and the creation of reserves. In the instructions of the Bank of Russia dated 12/03/2012 No. 139-and "On mandatory regulations of banks", from 31.03.2004 No. 112-and "On the mandatory regulations of credit institutions carrying out the emission of bonds with a mortgage coating" provides a number of standards that the credit organization must comply .
The credit institution is obliged to carry out the classification of assets, highlighting dubious and hopeless 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 required standards established in accordance with the Law on the Bank of Russia, the numerical values \u200b\u200bof which are established by the Bank of Russia in accordance with the Federal Law.
In the credit institution should function internal control, which, among other things, should verify compliance with the requirements provided for by the regulatory acts of the Bank of Russia.
- Instructions of the Bank of Russia from 03.12.2012 No. 139-and "On Mandatory Bank Standards".
- See: The position of the Bank of Russia No. 242-p.
