Article 857 of the Civil Code of the Russian Federation. Theory of everything
Official text:
Article 857. Banking secrecy
1. The bank guarantees the secrecy of the bank account and bank deposit, account transactions, and customer information.
2. Information constituting banking secrecy may be provided only to the clients themselves or their representatives, as well as submitted to the bureau credit histories on the grounds and in the manner prescribed by law. State bodies and their officials, such information may be provided only in cases and in the manner prescribed by law.
3. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
Lawyer's comment:
Paragraph 1 of this article defines the scope of information constituting bank secrecy. This information applies only to bank account and bank deposit agreements. More broadly, the concept of banking secrecy is established in Article 26 of the Banking Law. Based on its literal interpretation, we can conclude that the bank is obliged to keep secret not only on account and deposit operations, but also on other operations of its customers carried out on the basis of other agreements: credit, leasing, factoring, etc. In addition, in the paragraph 1 of Article 26, it is allowed for the bank to extend the regime of bank secrecy to other information, if this does not contradict the Federal Laws. It seems that banking secrecy should be understood as information relating exclusively to customers of credit institutions. Information relating to the bank as a commercial organization is protected in the manner prescribed for trade secrets.
Information about transactions on accounts is provided to customers in the form of extracts from the personal account. Account holders (one of them) have the right to demand that they be provided with an extract outside the procedure for issuing them established by the parties. In other cases, changing the procedure for issuing account statements is possible only with the permission of the chief accountant, his deputy, head of the bank department (clause 2.1 of section 2 of part 3 of the Rules for maintaining accounting in credit institutions located in the territory Russian Federation). The list of state bodies to which banks are obliged to provide information constituting bank secrecy is defined in Article 26 of the Banking Law. Depending on the category of client, the circle of bodies entitled to receive such information also differs.
This list is not exhaustive. Laws may provide for other cases. In particular, in accordance with paragraph 4 of Article 6 of the Law on Combating Money Laundering, the bank is obliged to provide the authorized body with information on operations on the client's bank accounts. The responsibility of the bank for the disclosure of bank secrecy is established in the form of compensation for losses (both real damage and lost profits). Clients - individuals have the right to demand compensation for non-pecuniary damage for the disclosure of bank secrecy under a bank deposit agreement on the basis of Article 15
1. The Bank guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client.
2. Information constituting bank secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit history bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
3. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
Commentary on Article 857 of the Civil Code of the Russian Federation
1. The obligation to keep banking secrecy applies to credit institutions, the Central Bank of the Russian Federation and audit organizations.
2. Credit organizations guarantee the secrecy of information on accounts and deposits, transactions on accounts and deposits, information about their customers (clause 1 of article 857 of the Civil Code) and correspondents, as well as other information established by the credit organization, unless this contradicts federal law(Article 26 of the Banking Law). Thus, a credit institution is not obliged to keep confidential information about counterparties of its customers, as well as other information that is not directly related to bank account(other than information about the client), if she has not assumed such obligations. Information constituting bank secrecy must be obtained by a credit institution in the course of its banking operations and other transactions under Art. 5 of the Banking Law.
No restrictions for distribution legal regime banking secrecy on other information (Article 26 of the Law on Banks) does not contain federal legislation. However, given that banking secrecy is a special kind of commercial secret, in this case one should be guided by the Decree of the Council of Ministers of the Russian Federation of December 5, 1991 N 35 "On the list of information that cannot constitute a commercial secret" (SP RF. 1992. N 1 - 2. Article 7). The requirements of the specified normative act should also be taken into account when determining the amount of information included in the concept of "information about clients and correspondents". This may include any data about legal, social, family, etc. position of the client, except for those listed in the Decree of the Council of Ministers of the Russian Federation of December 5, 1991 N 35. For example, information about the client's minor child, for the maintenance of which he regularly transfers money, should be included in the concept of banking secrecy.
3. In addition to the information specified in paragraph 2, the Central Bank of the Russian Federation is not entitled to disclose information about accounts, deposits, specific transactions and operations received by it from the reports of credit institutions or as a result of the performance of licensing, supervisory and control functions, with the exception of cases provided for by federal laws.
4. Audit organizations are not entitled to disclose to third parties information about operations, accounts and deposits of credit institutions, their clients and correspondents obtained in the course of their audits, except as otherwise provided by federal laws.
5. The Civil Code obliges credit institutions, the Central Bank of the Russian Federation and audit organizations not to disclose the information they receive.
The Civil Code determines the procedure and conditions for the provision of this information by credit institutions to third parties without the consent of their customers. In accordance with paragraph 2 of this. articles and art. 26 of the Law on Banks, certificates on operations and accounts of legal entities and citizens carrying out entrepreneurial activity without forming a legal entity, are issued to them (as well as their representatives), courts and arbitration courts (judges). the Accounts Chamber of the Russian Federation, state authorities tax service and tax police, customs authorities of the Russian Federation - in cases provided for legislative acts on their activities, as well as with the consent of the prosecutor - to the bodies of preliminary investigation in cases that are in their proceedings.
Information on accounts and deposits individuals are issued by the credit institution to itself (as well as to their representatives), to the courts, and, if the prosecutor agrees, to the bodies of preliminary investigation in cases under their proceedings.
Certificates on accounts and deposits in the event of the death of their owners are issued to persons indicated by the owner of the account or deposit in the testamentary order made by the credit institution, to notary offices - on inheritance cases in their proceedings on the contributions of deceased depositors, and in respect of accounts of foreign citizens - to foreign consular institutions .
6. Given that the investigating authorities may receive information constituting bank secrecy, in the presence of an initiated criminal case, the provision of information by credit institutions on the basis of Art. 109 Code of Criminal Procedure, art. 11 of the Law of the Russian Federation of April 18, 1991 "On the Police" (Vedomosti. 1991. N 16. Art. 503).
7. The conditions for providing customs authorities with information about legal entities that are included in the concept of bank secrecy are determined by clause 6 of the Regulations on the State Customs Committee of the Russian Federation, approved by Decree of the President of the Russian Federation of October 25, 1994 N 2014 (SZ. 1994. N 27. Art. 2855 ) and Art. 336 of the Labor Code of the Russian Federation. The State Customs Committee of the Russian Federation has the right to demand from credit institutions the submission of documents and information necessary for the performance of the tasks and functions assigned to it. An official of the customs body of the Russian Federation, who is in charge of proceedings or is considering a case on violation of customs rules, shall have the right to request the documents necessary for the proceedings or consideration of the case.
The procedure for submitting information on transactions and accounts of legal entities in tax authorities provided for by Art. 15 of the Fundamentals Act tax system, as well as the letter of the Ministry of Finance of the Russian Federation dated January 17, 1994 N 5 "On the procedure for submitting information to the tax authorities." The obligation of banks to provide this information in relation to individuals is not established by the laws of the Russian Federation.
8. For the disclosure of bank secrecy by the Central Bank of the Russian Federation, credit and audit organizations may be held liable in the form of compensation for losses. In addition, the client has the right to demand compensation for non-pecuniary damage in the manner prescribed by Art. Art. 151 and 152 of the Civil Code. Their officials and other employees bear disciplinary, and in the presence of the corresponding corpus delicti - criminal liability.
Article 858. Restriction on the disposal of an account
Another commentary on Article 857 of the Civil Code of the Russian Federation
1. One of the obligations of the bank under the bank account agreement is the obligation to guarantee the secrecy of the bank account, account transactions and information about the client. This information constitutes banking secrecy. In accordance with Art. 26 of the Banking Law, banking secrecy also includes information about correspondents of bank customers.
The obligation to keep banking secrecy lies not only on the bank, but also on its employees, as well as on other persons (on audit and other organizations, on the authorized body that takes measures to combat the legalization (laundering) of proceeds from crime, on their officials and employees, etc.), due to the performance of their professional duties, who received information constituting bank secrecy.
2. The client himself or his representative may disclose information constituting banking secrecy. The Bank may submit information constituting bank secrecy to credit bureaus. The law may provide for cases when the bank may provide such information to state bodies and their officials. The procedure for issuing bank statements on accounts and other information to interested parties is provided for in Art. 26 of the Banking Law. The Bank issues certificates on accounts to clients, courts, arbitration courts, the Accounts Chamber, tax and customs authorities, authorities for the enforcement of acts in cases provided for by legislative acts on their activities, and, if the head of the investigative authority has the consent, to the preliminary investigation authorities in cases under investigation. their production.
In addition, the obligation to provide information constituting bank secrecy may be provided for by other laws. So, paragraph 1 of Art. 25 of the Law on Protection of Competition obliges commercial organizations, and hence banks, including, to submit documents and information, including those constituting a secret protected by law, to the antimonopoly authority at its motivated request, based on the powers vested in it. At the same time, the Bank of Russia, by virtue of paragraph 2 of Art. 25 of the Law on Protection of Competition is not obliged to disclose banking secrecy at the request of the antimonopoly authority.
3. If the bank has divulged information constituting bank secrecy, the client may demand from the bank compensation for the losses incurred, as well as compensation for moral damage in accordance with Art. 151 - 152 of the Civil Code. If the bank allows a delay in compensation for losses, then from the moment the court decision on their compensation comes into force, unless another period is provided for in the law, the creditor has the right to accrue interest on the amount of losses in accordance with paragraph 1 of Art. 395 GK. Interest is also accrued if the obligation to pay monetary compensation is established by agreement of the parties (clause 23 of the Resolution of the Supreme Court and the Supreme Arbitration Court No. 13/14).
In addition, Art. 183 of the Criminal Code provides for criminal liability for disclosure of bank secrecy, and employees may be subject to disciplinary liability.
Responsibility for the disclosure of banking secrecy lies not only with the bank, but also with other persons who, by virtue of the performance of their professional duties or vested powers, have gained access to information constituting banking secrecy (see, for example, Article 26 of the Law on Protection of Competition).
4. The rules on bank secrecy also apply to relations under a bank deposit agreement. The obligation to preserve it lies with the credit and other organizations, as well as the organization that provides mandatory deposit insurance.
1. The Bank guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client.
2. Information constituting bank secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit history bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
3. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
Commentary on Article 857 of the Civil Code of the Russian Federation
1. One of the obligations of the bank under the bank account agreement is the obligation to guarantee the secrecy of the bank account, account transactions and information about the client. This information constitutes banking secrecy. In accordance with Art. 26 of the Banking Law, banking secrecy also includes information about correspondents of bank customers.
The obligation to keep banking secrecy lies not only on the bank, but also on its employees, as well as on other persons (on audit and other organizations, on the authorized body that takes measures to combat the legalization (laundering) of proceeds from crime, on their officials and employees, etc.), due to the performance of their professional duties, who received information constituting bank secrecy.
2. The client himself or his representative may disclose information constituting banking secrecy. The Bank may submit information constituting bank secrecy to credit bureaus. The law may provide for cases when the bank may provide such information to state bodies and their officials. The procedure for issuing bank statements on accounts and other information to interested parties is provided for in Art. 26 of the Banking Law. The Bank issues certificates on accounts to clients, courts, arbitration courts, the Accounts Chamber, tax and customs authorities, authorities for the enforcement of acts in cases provided for by legislative acts on their activities, and, if the head of the investigative authority has the consent, to the preliminary investigation authorities in cases under investigation. their production.
In addition, the obligation to provide information constituting bank secrecy may be provided for by other laws. So, paragraph 1 of Art. 25 of the Law on Protection of Competition obliges commercial organizations, and hence banks, including, to submit documents and information, including those constituting a secret protected by law, to the antimonopoly authority at its motivated request, based on the powers vested in it. At the same time, the Bank of Russia, by virtue of paragraph 2 of Art. 25 of the Law on Protection of Competition is not obliged to disclose banking secrecy at the request of the antimonopoly authority.
3. If the bank has divulged information constituting bank secrecy, the client may demand from the bank compensation for the losses incurred, as well as compensation for moral damage in accordance with Art. 151 - 152 of the Civil Code. If the bank allows a delay in compensation for losses, then from the moment the court decision on their compensation comes into force, unless another period is provided for in the law, the creditor has the right to accrue interest on the amount of losses in accordance with paragraph 1 of Art. 395 GK. Interest is also accrued if the obligation to pay monetary compensation is established by agreement of the parties (clause 23 of the Resolution of the Supreme Court and the Supreme Arbitration Court No. 13/14).
In addition, it provides for criminal liability for disclosure of bank secrecy, and employees may be subject to disciplinary liability.
Responsibility for the disclosure of banking secrecy lies not only with the bank, but also with other persons who, by virtue of the performance of their professional duties or vested powers, have gained access to information constituting banking secrecy (see, for example, Article 26 of the Law on Protection of Competition).
4. The rules on bank secrecy also apply to relations under a bank deposit agreement. The obligation to preserve it lies with the credit and other organizations, as well as the organization that provides mandatory deposit insurance.
Article 857. Banking secrecy
Questions judicial practice on the interpretation and application of Art. 857 of the Civil Code of the Russian Federation
1. Information constituting banking secrecy
According to Art. 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and banking” (hereinafter referred to as the Law on Banks and Banking Activities) credit institutions, the Central Bank of the Russian Federation, organizations performing functions for compulsory insurance deposits, guarantee the secrecy of transactions, accounts and deposits of their customers and correspondents.
In judicial practice, there are disputes about what information can be classified as bank secrecy.
1.1. Conclusion from judicial practice: Information about the bank account, transactions on it, as well as information directly related to the borrower himself, is a secret, and disclosure to third parties, except as provided by law, violates the rights of the bank client.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Far Eastern District dated March 22, 2011 N F03-615/2011 in case N A37-944/2010
“... By virtue of paragraph 2 of Article 857 Civil Code The bank of the Russian Federation guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client. Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
It follows from the foregoing that the law provides for the borrower's right to keep information about his bank account, transactions on this account, as well as information relating directly to the borrower himself, in secret and disclosure of this information to third parties not specified in the law violates his rights ... ”
Acts of higher courts
Determination of the Supreme Arbitration Court of the Russian Federation dated July 14, 2011 N VAC-8679/11 in case N A37-944/2010
“... Refusing to satisfy the stated claim, the court of cassation proceeded from the provision of Article 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activity”, Article 857 of the Civil Code of the Russian Federation, according to which the borrower’s right to preserve information about his banking account, transactions on this account, as well as information relating directly to the borrower himself, are secret and disclosure of this information to third parties not specified in the law violates his rights ... ”
Far Eastern District
Decree of the Federal Antimonopoly Service of the Far Eastern District dated August 30, 2013 N F03-3819/2013 in case N A73-16071/2012
“...Currently, only the clause of the prescription is in dispute, indicating the inadmissibility of including in the contract conditions for the provision of information to third parties and documents confirming the rights of the creditor under the contract, including information about the loan provided, the amount of debt, the terms of the contract, as well as information about borrower, his personal data, in case of non-fulfillment or improper fulfillment of obligations by the borrower and the presence of overdue debt under the contract.
By virtue of paragraph 2 of Article 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client. Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
In accordance with Article 26 of the Law on Banks and Banking Activities, a credit institution, the Bank of Russia, an organization that performs the functions of compulsory deposit insurance guarantee the secrecy of operations, accounts and deposits of their customers and correspondents. All employees of a credit institution are required to keep secret about the operations, accounts and deposits of its customers and correspondents, as well as about other information established by the credit institution, unless this is contrary to federal law.
The specified norm defines the amount of information provided and establishes the circle of persons to whom credit organizations and banks can provide information on accounts and deposits of individuals.
At the same time, the law establishes responsibility for the disclosure by the bank (that is, the transfer to other persons) of the specified information, which, by virtue of Article 857 of the Civil Code of the Russian Federation, constitutes bank secrecy.
It follows from the foregoing that the law provides for the borrower's right to keep information about his bank account, transactions on this account, as well as information relating directly to the borrower himself, in secret and disclosure of this information to third parties not specified in the law violates his rights.
Based on the foregoing, the court of first instance came to the rightful conclusion that in this part the conditions for the provision and service consumer loans contrary to the above rules of law…”
1.2. Conclusion from judicial practice: Information about the nature and types economic activity client, his lease relations with third parties are not bank secrets, therefore, by providing such information to third parties, the credit institution does not violate the provisions of the Law on Banks and Banking Activity.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Far Eastern District of September 26, 2011 N F03-4331/2011 in case N A73-13285/2010
“...OJSC Bank of Moscow applied to the Federal Service for Regulation of the Alcohol Market of the Ministry of Internal Affairs of the Federal Service for Alcohol Regulation for the Far Eastern Federal District with a letter dated 03/23/2010 N MEMO 01-0986, in which it asked to check that LLC TPK ALIR has a license for the right to trade in alcoholic products and a lease agreement. In support of its appeal, the Bank indicated that ORGTEHPROM CJSC has been the owner of non-residential building located at the address: Khabarovsk, st. Melnichnaya, 39, Lit. A. ORGTEHPROM CJSC sent two copies of the lease agreement for this premises to TPK ALIR LLC, one of which the company was obliged to return. CJSC ORGTEHPROM did not receive a copy of the lease agreement signed by TPK ALIR LLC. TPK ALIR LLC, engaged in the wholesale supply of alcoholic products, continues to be in this room, rent does not produce for the premises. In this connection, ORGTEHPROM CJSC decided to terminate the lease agreement in unilaterally from 15.02.2010. The notice of termination of the contract was handed over to TPK ALIR LLC on February 10, 2010, about which the Federal Service for Regulation of the Alcohol Market of the MRU Rosalkogolregulirovaniya for the Far Eastern Federal District was not informed. The Bank also indicated that the main activity of the company is wholesale trade building materials.
Referring to the fact that the letter dated 23.03.2010 N MEMO 01-0986 of the Bank of Moscow disclosed information about the client constituting a bank secret, and believing that the termination of the said agreements resulted in losses in the form of lost profits in the amount of 122,400,000 rubles ., LLC “TPK ALIR” applied to the arbitration court with this claim.
In accordance with Article 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
Clause 2.1.10 of the bank account agreement dated May 18, 2007 N 2516 provides for the obligation of the Bank of Moscow OJSC to maintain the secrecy of the bank account, account transactions and information about the client.
Having assessed, according to the rules provided for in Article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented in the case, including letter N MEMO 01-0986 dated 23.03.2010, the court found that the information contained in it about the occupation of TPK ALIR LLC by wholesale deliveries of alcoholic products, the fact that the main activity of the company is the wholesale trade in building materials, as well as information about the lease relationship with CJSC ORGTEHPROM, do not apply to information constituting banking secrecy.
Under such circumstances, there are no grounds for canceling the contested judicial acts and satisfying the cassation appeal ...”
2. Actions that may indicate a violation of banking secrecy
In accordance with paragraph 1 of Art. 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
In accordance with paragraph 2 of Art. 382 of the Civil Code of the Russian Federation, the consent of the debtor is not required for the transfer of the creditor's rights to another person, unless otherwise provided by law or an agreement. The legislation on banks and banking activities does not prohibit banks from assigning the right to claim to another person. Assignment of the right to claim entails the transfer to the assignee of information related to banking secrecy. In judicial practice, there are disputes related to the fact that a person who is not subject to the obligation to maintain bank secrecy can act as an assignee.
2.1. Conclusion from judicial practice: The term of the agreement, according to which the creditor has the right, without the consent of the borrower, to assign his rights under the agreement to another person, including one who does not have the status of a credit institution, does not violate the requirements of the law on observance of banking secrecy.
Note: Previously, the opposite position was also presented in judicial practice: the terms of the contract, according to which the creditor has the right to assign his rights to another person without the consent of the borrower, were recognized by the courts as violating the rights of consumers. For details, see Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated March 22, 2011 N F03-615/2011 in case No. A37-944/2010, FAS of the Northwestern District dated August 30, 2011 in case No. A66-8547/2010, dated March 10, 2011 in case N A66-9099/2010.
In addition, there was a point of view in judicial practice, according to which the creditor is not entitled to assign his rights under the contract to a person that is not a credit institution (see Resolution of the Federal Antimonopoly Service of the East Siberian District of November 16, 2010 in case N A33-6310 / 2010) .
On the issue of the need for a license from a new creditor, to which the bank assigns rights under a loan agreement concluded with an entrepreneur, see clause 13.1 of the materials to Art. 819 of the Civil Code of the Russian Federation.
On the practice of application by courts of legislation on the protection of consumer rights when replacing a person in a contractual obligation (in cases involving territorial bodies Rospotrebnadzor) see the letter of Rospotrebnadzor dated 23.08.2011 N 01/10790-1-32.
It should be noted that paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 30, 2007 N 120 states that the assignment by the bank of the rights of the creditor under the loan agreement to a legal entity that is not a credit institution does not contradict the law.
The Supreme Court of the Russian Federation, in turn, adheres to the position that the assignment by a bank of the right to claim to a third party that is not a credit institution, according to loan agreements with consumers (individuals) is possible only if such a condition is stipulated in the contract or if this right is granted to the creditor by virtue of law (paragraph 51 of the Decree of the Plenum of the Supreme Court of the Russian Federation of 06/28/2012 N 17).
Arbitrage practice:
Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 146
"…16. The assignment by a bank to a person that does not have the status of a credit institution of a claim not fulfilled on time under a loan agreement with a citizen borrower does not contradict the law and does not require the consent of the borrower.
The credit organization was brought to administrative responsibility by the Rospotrebnadzor body for violating consumer rights (Part 1 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation), expressed in providing consumers with false information regarding the possibility of the bank ceding the right to claim overdue debt under a loan agreement to third parties without the consent of the debtor. This information was included by the bank in the standard conditions for granting and servicing a loan and in the text model statement about granting a loan. According to the authority of Rospotrebnadzor, this information does not comply with the provisions of paragraph 2 of Article 388 of the Civil Code of the Russian Federation, since the assignment of the right to claim without the consent of the debtor in a consumer lending agreement is impossible, since the identity of the creditor is essential for the debtor.
The credit organization applied to the court with an application to recognize the decision of the Rospotrebnadzor body as invalid.
The court of cassation on the cassation appeal of the credit organization canceled the decision of the court of first instance and the decision of the court of appeal and declared the decision of the Rospotrebnadzor body invalid. The court pointed out that the requirement to return a loan issued to an individual under a loan agreement is not one of the requirements that are inextricably linked with the identity of the creditor. According to Article 382 of the Civil Code of the Russian Federation, the consent of the debtor is not required for the transfer of the rights of the creditor to another person, unless otherwise provided by law or the contract, while the legislation of the Russian Federation does not contain a rule that establishes the need to obtain the consent of a borrower-citizen for the assignment to a credit institution of claims arising from from the loan agreement. When a claim for repayment of a loan is ceded (including when the assignee does not have the status of a credit institution), the terms of the loan agreement concluded with the citizen do not change, his position does not worsen (Articles 384 and 386 of the Civil Code of the Russian Federation), guarantees provided citizen-borrower by consumer protection legislation are preserved. The court of cassation also pointed out that the assignment of claims arising from the loan agreement does not violate the regulatory provisions on bank secrecy (Article 26 of the Banking Law), since in accordance with part 7 of this article, the assignee, his officials and employees are obliged to keep known information constituting bank secrecy, and these persons bear the legal responsibility for its disclosure (including in the form of an obligation to compensate the borrower for the damage caused by the disclosure of bank secrecy).
In connection with the foregoing, the court of cassation came to the conclusion that there was no objective side of the administrative offense in the actions of the credit institution, the responsibility for which is provided for by Part 1 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation ...”
Similar jurisprudence:
Acts of higher courts
Determination of the Constitutional Court of the Russian Federation of September 24, 2012 N 1822-O
“... The provisions of Article 384 of the Civil Code of the Russian Federation, which determines the scope of rights transferred under an agreement on their assignment from the original creditor to the new one, and paragraph 2 of Article 385 of this Code, according to which the creditor, who has assigned the claim to another person, is obliged to transfer to him documents certifying the right to claim , and provide information relevant to the implementation of the requirement, in a systematic relationship with legislative guarantees of banking secrecy (Article 857 of the Civil Code of the Russian Federation, Article 26 of the Federal Law of December 2, 1990 N 395-1 “On banks and banking activities”), as well as taking into account the clarifications of the Plenum Supreme Court of the Russian Federation on the impossibility of assignment by a bank or other credit organization of the right to claim under a loan agreement with a consumer to persons who do not have a license for the right to carry out banking activities, unless otherwise provided by law or by an agreement containing this condition, which was agreed by the parties when concluding the agreement (paragraph 51 Resolution of June 28, 2012 N 17 “On the consideration by the courts of civil cases on disputes on the protection of consumer rights”) cannot be considered as violating the constitutional rights of the applicant indicated in the complaint ...”
West Siberian District
Decree of the Federal Antimonopoly Service of the West Siberian District dated January 16, 2012 in case N A70-2810 / 2011
"…Public corporation joint stock bank“Assistance to public initiatives” represented by the branch “Tyumensky” (hereinafter referred to as OJSC JSB “SOI”, Bank) applied to the Arbitration Court Tyumen region with an application to invalidate the order of 04.02.2011 N 111 of the Office Federal Service on supervision in the field of consumer protection and human well-being in the Tyumen region (hereinafter referred to as the Office) and inspection report N 104 dated 03.02.2011.
It follows from the materials of the case that on the basis of Order No. 575 dated December 29, 2010, the Office conducted an unscheduled inspection of SOI JSB OJSC in the period from December 31, 2010 to February 4, 2011. The results of the audit were reflected in act No. 104 dated February 4, 2011, according to which the Department revealed a violation by the Bank of the legislation on consumer protection. Also, the Department issued to the Bank an order N 111 dated 04.02.2011 to stop the violation of consumer rights when concluding loan agreements, indicating as the basis for its issuance the act of verification N 104 dated 03.02.2011.
Condition on the right of the Bank to transfer the right of claim under the agreement to another person without the consent of the Borrower, with the disclosure of the necessary information for such information about the debt under the agreement, the Borrower and the Guarantor (clause 15.2.2).
The disputed order in this part was recognized by the arbitration court as illegal, due to non-compliance with the norm of Article 382 of the Civil Code of the Russian Federation.
The judicial board of the cassation instance recognizes the conclusion of the arbitration court on the absence of a norm establishing the need to obtain the consent of a borrower-citizen to cede to a credit organization the claims arising from the loan agreement, recognizes as correct ... "
Northwestern District
Resolution of the Federal Antimonopoly Service of the North-Western District of 01/10/2012 in case N A56-19799 / 2011
“... As established by the courts of the first and appellate instances and is seen from the case file, on the basis of the appeal of Zimina L.L. about the violation of her rights by the terms of the loan agreement dated 15.09.2010 N 04110/AZ The Department conducted a documentary audit of the Company's compliance with the legislation of the Russian Federation in the field of consumer protection.
The audit revealed that, according to the terms of the loan agreement, the Company has the right, without the consent of the client, to assign claims under this agreement to a third party, disclosing the information necessary for making the assignment about the loan, debt and client (clause 6.2.5).
Considering that the specified term of the contract infringed the rights of the consumer, the Department issued an order to the Company dated 04.04.2011 N Yu 78-00-03 / 24-0061 to eliminate violations of the law by 24.05.2011.
According to article 857 of the Civil Code of the Russian Federation and article 26 of the Banking Law, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and customer information.
In accordance with the recommendations of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in paragraph 16 of the Review of judicial practice on certain issues related to the application of administrative liability to banks for violating consumer protection legislation when concluding loan agreements (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 13.09.2011 N 146), the assignment by a bank to a person that does not have the status of a credit institution of an unfulfilled claim under a loan agreement with a citizen borrower does not contradict the law and does not require the consent of the borrower.
Under such circumstances, the court of first instance came to the rightful conclusion that the disputed condition of the loan agreement does not contradict the law and does not infringe on the rights of the consumer, and the court of appeal had no grounds to cancel the court decision in this part ...”
Resolution of the Federal Antimonopoly Service of the North-Western District of March 10, 2011 in case N A66-9099 / 2010
“... By virtue of paragraph 1 of Article 819 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), under a loan agreement, a bank or other credit organization undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the received sum of money and pay interest on it.
By virtue of Article 26 of the Law on Banks and Banking Activities, a credit institution guarantees the secrecy of operations, accounts and deposits of its customers.
Thus, the Company, including in the loan agreement a condition on the right of the creditor to assign its rights under the agreement to another person without the consent of the borrower, violates the consumer's right to secrecy about a bank deposit ... ”
Resolution of the Federal Antimonopoly Service of the North-Western District dated 05.10.2010 in case N A56-6478 / 2010
“... In the opinion of the cassation instance, the arbitration court of first instance also came to the rightful conclusion that the Company’s actions did not contain an administrative offense on episodes related to the inclusion in loan agreements of conditions for the recovery of a penalty in the event of late payment of a loan repayment and payment of interest and the right of the creditor to assign its rights under the contract to another person without the consent of the borrower.
Thus, the inclusion in the loan agreement of a condition on the collection of a penalty for violation of the terms for making a payment to repay the loan and pay interest does not contradict the law and does not infringe on the rights of the consumer, as well as the condition on the right of the creditor to assign his rights under the agreement to another person without the consent of the borrower, since the assignment of claims under a loan agreement is not among the banking operations specified in Article 5 of the Law on Banks and Banking Activities, the implementation of which is possible on the basis of an appropriate license ...”
2.2. Conclusion from judicial practice: The transfer to a third party of information about the upcoming receipt of a loan by the client indicates a violation by the bank of the provisions of Art. 857 of the Civil Code of the Russian Federation on bank secrecy.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Far Eastern District of December 15, 2011 N F03-6123/2011 in case N A24-1771/2011
“…09/27/2010 Pan LLC represented by CEO Panferova A.V. (the counterparty LLC “Lenta-STROY” under supply contract N 1/12-P dated 12/16/2009) informed the plaintiff that he had learned from an employee of the Bank that the plaintiff would receive a loan in the amount of 1,000,000 rubles, in connection with than asked to transfer to the society "Pan" 500,000 rubles.
LLC “Lenta-STROY”, believing that as a result of the Bank’s illegal actions to disclose information about obtaining a loan, it was forced to make settlements with the counterparty (LLC “Pan”), which did not allow the purchase of goods for the entire amount of the loan, applied to the arbitration court with real claim.
In accordance with Article 26 of the Federal Law of 02.12.1990 N 395-1 “On Banks and Banking Activities”, a credit institution, the Bank of Russia, an organization that performs the functions of compulsory deposit insurance guarantee secrecy about transactions, about accounts and deposits of their customers and correspondents . All employees of a credit institution are required to keep secret about the operations, accounts and deposits of its customers and correspondents, as well as about other information established by the credit institution, unless this is contrary to federal law.
The specified norm defines the amount of information provided and establishes the circle of persons to whom credit organizations and banks can provide information on accounts and deposits of individuals.
At the same time, the law establishes responsibility for the disclosure by the bank (that is, the transfer to other persons) of the specified information, which, by virtue of Article 857 of the Civil Code of the Russian Federation, constitutes banking secrecy.
The arbitration courts established that during the period of disputed legal relations, the plaintiff had a current account with the Bank, opened on the basis of agreement No. 1156/0000000082 concluded between the parties on December 24, 2009, therefore, Lenta-STROY LLC was a client of the Bank.
In this regard, the courts made a reasonable conclusion that the transfer by the defendant of information about the forthcoming receipt of a loan by the plaintiff to a third party - Pan LLC indicates a violation by the Bank of the provisions of Article 857 of the Civil Code of the Russian Federation ... ”
Similar jurisprudence:
Acts of higher courts
Determination of the Supreme Arbitration Court of the Russian Federation dated March 20, 2012 N VAC-2817/12 in case N A24-1771/2011
“...Between the bank (creditor) and the Lenta-STROY company (borrower) loan agreement No. 721/1156-0000046 dated September 30, 2010, pursuant to which the borrower was granted a loan in the amount of 1,000,000 rubles.
By payment order dated 01.10.2010 N 33, the Lenta-STROY company transferred 400,000 rubles to the supplier, indicating in the purpose of payment - payment of invoice dated 01.10.2010 N 106 for building materials.
Believing that as a result of illegal actions of a bank employee to disclose information about the receipt of a loan by the borrower, the latter was forced to make settlements with the Pan company, which did not allow him to purchase goods for the entire amount of the loan and caused losses in the form of lost profits in in the amount of 500,000 rubles, the client went to court with this claim.
Having assessed the evidence presented by the parties from the standpoint of Article 71 of the Arbitration Procedure Code of the Russian Federation, guided by Articles 15, 857 of the Civil Code of the Russian Federation, and also taking into account that the client independently disposed of the money received under the named loan agreement in cash to pay the debt under the supply agreement dated 12/16/2009 N 1 / 12-P, the courts concluded that the claim was dismissed due to the absence of a causal relationship between the bank's illegal actions to disclose information constituting bank secrecy and incurred by Lenta -STROY” losses.
A prerequisite for the onset of liability for causing losses is the presence of a corpus delicti, including the occurrence of losses, the wrongfulness of the behavior and the fault of the causer of losses, as well as a causal relationship between the behavior of the causer of losses and the resulting losses. The absence of one of the elements of the above offense entails a refusal to satisfy the claim.
The applicant's arguments, according to which he did not agree with the disputed judicial acts, were the subject of judicial proceedings, they were given an appropriate assessment by lower courts. The reassessment of the factual circumstances of the case established by the lower courts and the evidence presented by the parties to the dispute, by virtue of the provisions of Chapter 36 of the Arbitration Procedure Code of the Russian Federation, is not within the powers of the supervisory court.
Violations of the norms of substantive law, as well as the requirements of procedural legislation, entailing the unconditional cancellation of a judicial act, were not allowed by the courts ... ”
3. Provision of information constituting bank secrecy to tax authorities
In accordance with paragraph 2 of Art. 857 of the Civil Code of the Russian Federation, information constituting bank secrecy may be provided only to the clients themselves or their representatives, as well as credit history bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner established by law.
According to Art. 26 of the Federal Law of 02.12.1990 N 395-1 “On Banks and Banking Activities” (hereinafter referred to as the Law on Banks and Banking Activities), a credit institution and the Central Bank of the Russian Federation guarantee the secrecy of operations, accounts and deposits of their customers and correspondents. All employees of a credit institution are required to keep secret about transactions, accounts and deposits of its customers and correspondents, as well as about other information established by the credit institution, unless this contradicts federal law.
Article 86 of the Tax Code of the Russian Federation defines the grounds on which the tax authority has the right to request from banks information on the existence of accounts, cash balances on them, as well as statements of account transactions. Such grounds are recognized as holding events tax control in relation to organizations or individual entrepreneurs(in relation to the accounts of which the relevant information is requested from the bank), the implementation by the tax authority of the procedure enforcement tax debt, as well as making a decision to suspend operations on accounts.
In judicial practice, when interpreting these norms, questions arise about in what cases and what documents the tax authorities have the right to request from the bank in relation to its client.
3.1. Conclusion from judicial practice: Holding tax audit the bank itself is not a basis for the bank to provide information about customers constituting bank secrecy.
Arbitrage practice:
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 21, 2010 N 11515/10 in case N A32-46798/2009-33/633
“...According to Article 87 of the Code, tax authorities have the right to conduct cameral and field tax audits in respect of taxpayers, payers of fees and tax agents.
Verification of a credit institution's compliance with Articles 60, 76, and 86 of the Code by conducting an on-site tax audit is not provided for by the legislation on taxes and fees. Such verification may be carried out by other methods determined by law.
Refusing to satisfy the bank’s claims, the court of cassation considered the inspection appointed by the inspectorate to be a form of tax control to verify the bank’s fulfillment of the obligations established by the Code, the implementation of which is provided for by clause 15 of article 7 of the Law of the Russian Federation of 03/21/1991 N 943-1 “On the tax authorities of the Russian Federation”.
At the same time, the tax authorities named by the Law are granted the right to control the fulfillment by credit institutions of the obligations established by the Tax Code of the Russian Federation in the manner approved by federal agency executive power, authorized to control and supervise in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation. Tax authorities have the right to gain access to information constituting bank secrecy to the extent necessary to exercise such control.
The courts established that by the requirement of 08.10.2009 N 11/122, the inspection obliged the bank to submit banking documents day, statements on personal accounts of taxpayers, statements on internal and external correspondent accounts, a register of collection orders, a book of registration of open (closed) accounts, legal affairs of taxpayers and legal affairs of an additional office.
Article 86 of the Code defines the grounds on which the tax authority has the right to request from banks information on the existence of accounts, on the balances of funds on them, as well as statements of transactions on accounts. Such grounds in this article include tax control measures in relation to organizations or individual entrepreneurs (in relation to whose accounts the relevant information is requested from the bank), the implementation by the tax authority of the procedure for the forced collection of tax debts, as well as the decision to suspend operations on accounts.
Thus, from the content of the said rule of law, it follows that the documents listed above can be requested by the tax authority from the bank only on the specified grounds in relation to a particular taxpayer. In this case, the bank is obliged to provide relevant information to the tax authority upon its reasoned request. This rule does not provide for other cases for requesting the mentioned documents from banks.
Since the basis for issuing the disputed claim to the bank was the decision of the Inspectorate of September 25, 2009 N 18 on the appointment of an audit of the bank itself, while there are no other appropriate grounds confirming the need for the bank to provide information about its customers and related to the goals and objectives of the tax authorities, there are no other appropriate grounds for the inspection 08.10.2009 N 11/122 is not enforceable as illegal…”
3.2. Conclusion from judicial practice: In connection with the audit of a taxpayer, the tax authority has the right to request from the bank currency control documents in respect of this person, including statements bank control and transaction certificates. The actions of the bank to provide such documents are not a violation of banking secrecy.
Arbitrage practice:
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 31, 2009 N 16896/08 in case N A33-17492/2007
“... On August 30, 2007, the Inspectorate of the Federal Tax Service for the Central District of Krasnoyarsk (hereinafter referred to as the Inspectorate) sent an open joint-stock company URALSIB BANK in the city of Krasnoyarsk (hereinafter referred to as URALSIB Bank, bank) requirement dated July 2, 2007 N 346 for submission in accordance with Article 93.1 tax code Russian Federation (hereinafter referred to as the Code) of bank control records containing information on transactions under contracts; transaction passports (main and additional sheets) containing information on transactions under contracts relating to the activities of the open joint-stock company "Krasnoyarsk plant of refrigerators" Biryusa "in connection with the on-site tax audit.
By Letter No. 703-7112 dated September 17, 2007, URALSIB Bank refused to submit the requested documents on the grounds that, in accordance with paragraph 2 of Article 86 of the Code, banks are required to issue certificates to the tax authorities on the availability of bank accounts and (or) on cash balances on accounts, statements on transactions on the accounts of organizations (individual entrepreneurs), and the bank control sheet and transaction passports are currency control documents and, in accordance with the current legislation, are not submitted to tax authorities.
In accordance with paragraph 15 of Article 7 of the Law of the Russian Federation of March 21, 1991 N 943-1 “On the Tax Authorities of the Russian Federation”, tax authorities are granted the right to control the fulfillment by credit institutions of the obligations established by the Code in the manner approved by the federal executive body authorized for control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation. Tax authorities have the right to gain access to information constituting bank secrecy to the extent necessary to exercise such control.
Based on Article 93.1 of the Code, which regulates the procedure for requesting documents (information) about a taxpayer, a payer of fees and a tax agent or information about specific transactions, an official of a tax authority conducting a tax audit has the right to request from a counterparty or other persons who have documents (information) relating to the activities of the taxpayer being checked (payer of the fee, tax agent), these documents (information).
A person's refusal to submit the documents requested during a tax audit or failure to submit them within the established time limits is recognized as a tax offense and entails liability under Article 129.1 of the Code.
According to paragraph 1 of Article 129.1 of the Code, unlawful failure to report ( untimely message) by a person of information that, in accordance with the Code, this person must report to the tax authority, in the absence of signs of a tax offense provided for in Article 126 of the Code, entails a fine in the amount of 1,000 rubles.
The responsibility of a bank as a credit institution, established by Chapter 18 of the Code, does not exclude the possibility of bringing it to tax liability, provided for in Article 129.1 of the Code, as any legal entity that has documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited, in accordance with with Article 93.1 of the Code.
Thus, the conclusion of the courts that banks are not subject to liability under Article 129.1 of the Code is contrary to the provisions established by Article 93.1 of the Code.
Under these circumstances, the contested judicial acts violate the uniformity in the interpretation and application of the rules of law by arbitration courts, therefore, on the basis of paragraph 1 of Article 304 of the Arbitration Procedure Code of the Russian Federation, they are subject to cancellation ... ”
3.3. Conclusion from judicial practice: The provision by the bank to the tax authority of information on business transactions performed by the counterparty of the audited taxpayer as part of a specific transaction with the latter is not a violation of banking secrecy.
Arbitrage practice:
Resolution of the Federal Antimonopoly Service of the East Siberian District of September 22, 2010 in case N A33-916 / 2010
“... As established by the courts of the first and appellate instances, an on-site tax audit was carried out with respect to the taxpayer regarding the correctness of the calculation and timeliness of payment (withholding, transfer) of taxes and fees for the period from 2006-2007.
During the audit by the tax authority in credit institutions requests were sent to provide an extract (statements) on transactions on the organization’s account (accounts) in relation to the taxpayer’s counterparties: Kobus LLC, Siberia Respect Trading LLC, Continent Siberia LLC, Snabkomplekt LLC, Snabkomplekt LLC, and also letters on provision of information on the operations of Continent Siberia LLC for the purchase of promissory notes.
Believing that the actions of the tax authority to collect, store and use the information received on transactions on the settlement accounts of the taxpayer's counterparties, as well as information enshrined in the explanations of the heads of the counterparties and the protocols of inspection at the legal addresses of the counterparties, violate the rights and legitimate interests of society in the field economic activity, it filed an application for the recognition of these actions as illegal and for the obligation of the tax authority to eliminate violations of the applicant's rights.
The arbitration courts found that tax office sent a request to a credit institution for the provision of certificates on transactions and accounts of the taxpayer's counterparties as part of an on-site tax audit of the company and in order to establish the fact of real business transactions between the company and the specified counterparties.
Similar jurisprudence:
East Siberian District
Resolution of the Federal Antimonopoly Service of the East Siberian District of September 17, 2010 in case N A33-2557 / 2010
“... As is seen from the case file and it was established by the courts of first and appellate instances, an on-site tax audit was carried out with respect to the taxpayer regarding the correctness of the calculation and timeliness of payment (withholding, transfer) of taxes and fees for the period from 01/11/2006 to 12/31/2008, according to the results of the check were drawn up act N 42 dated 30.09.2009.
In the course of an audit by the tax authority, requests were sent to credit institutions to provide an extract (statements) on transactions on the organization's account (accounts) in relation to the taxpayer's counterparties.
By virtue of subparagraph 2 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation, tax authorities have the right to conduct tax audits in the manner prescribed by this Code.
Subparagraph 2 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation establishes that the tax authorities are obliged to exercise control over compliance with the legislation on taxes and fees, as well as regulatory legal acts adopted in accordance with it.
According to paragraph 1 of Article 82 of the Tax Code of the Russian Federation, tax control is recognized as the activity of authorized bodies for monitoring compliance by taxpayers, tax agents and payers of fees with the legislation on taxes and fees in the manner established by this Code. Tax control is carried out by officials of the tax authorities within their competence through tax audits, obtaining explanations from taxpayers, tax agents and payers of fees, checking accounting and reporting data, inspecting premises and territories used to generate income (profit), as well as in other forms, provided for by this Code.
Paragraph 3 of Article 7 of the Law of the Russian Federation “On the Tax Authorities of the Russian Federation” (as amended by Federal Law N 137-FZ) corresponds to these provisions of the Tax Code of the Russian Federation, according to which the tax authorities are granted the right to exercise tax control by conducting tax audits, as well as in other forms determined by the Code.
Arbitration courts established that the tax inspectorate sent a request to a credit institution for the provision of certificates on transactions and accounts of the taxpayer's counterparties - LLC Alternativa, Arteg, Bonus Plus, Borus, Interstroy, Kobus, Menzot ”, “Nika”, “Ontara”, “Pegasus”, “Romus”, “Slim”, “Tuim”, “Phobos”, “Factoria”, “Elbrus” within the framework of conducting an on-site tax audit of the company and in order to establish the fact of implementation real business transactions between the company and the specified counterparties.
Consequently, the tax inspectorate, within the limits established by the above regulatory legal acts competencies carried out these actions within the framework of tax control measures…”
Resolution of the Federal Antimonopoly Service of the East Siberian District of September 15, 2010 in case N A33-659 / 2010
“... As follows from the case file, the tax inspectorate conducted an on-site tax audit of the company on issues of execution and compliance with the law, the correctness of calculation and timeliness of payment (withholding and transfer) of taxes and fees for the period from 01/01/2006 to 12/31/2008.
On January 27, 2009, the tax inspectorate sent request No. 11-33/00970dsp to FCB Uniastrum Bank in Krasnoyarsk for the provision of information on transactions and accounts of the company's counterparty, LLC TransCom.
Subparagraph 2 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation establishes that the tax authorities are obliged to exercise control over compliance with the legislation on taxes and fees, as well as regulatory legal acts adopted in accordance with it.
As follows from the case file, the tax inspectorate, in the course of an on-site tax audit of the taxpayer, sent a request dated January 27, 2009 N 11-33 / 00970dsp to the Uniastrum Bank in Krasnoyarsk for information on the operations and accounts of the counterparty of the company - a limited liability company the responsibility of TransCom (hereinafter referred to as LLC TransCom).
According to the motivational part of the controversial request for the provision of certificates on transactions on the accounts of TransCom LLC, it was sent by the tax inspectorate in accordance with paragraph 2 of Article 86 of the Tax Code of the Russian Federation, paragraph 3 of Article 7 of the Law of the Russian Federation of March 21, 1991 N 943-1 “On tax authorities of the Russian Federation”, in connection with the on-site tax audit of the organization.
From the act of the field tax audit dated 30.09.2009 N 42, the decision of 10.12.2009 N 46 on bringing to responsibility for committing a tax offense, it follows that the field tax audit was carried out in relation to the Nika limited liability company. Evidence of tax control measures in respect of TransCom LLC was not presented by the tax inspectorate in the case file.
The arbitration court established that the tax inspectorate sent a request to a credit institution for the provision of certificates on the transactions and accounts of the taxpayer's counterparty, TransCom LLC, as part of an on-site tax audit of the company and in order to establish the fact of real business transactions between the company and the specified counterparty.
Consequently, the tax inspectorate, within the competence established by the above regulatory legal acts, carried out these actions as part of tax control measures ...”
Resolution of the Federal Antimonopoly Service of the East Siberian District of September 15, 2010 in case N A33-535 / 2010
“... As follows from the case file, the tax inspectorate conducted an on-site tax audit of the company on issues of execution and compliance with the law, the correctness of the calculation and timeliness of payment (withholding and transfer) of taxes and fees for the period from 02/09/2007 to 12/31/2008.
In the course of an on-site tax audit, the tax inspectorate, as tax control measures, carried out cross-tax audits of the company's counterparties, during which instructions were sent to request from credit institutions documents on the activities of the taxpayer's counterparties - InvestStroy LLC, MegaStroy LLC, PK- Draft” concerning the activities of LLC “Stroyinvest”, requests were sent to credit institutions for the provision of an extract (statements) on transactions on the account (accounts) of the organization in relation to the specified counterparties of the taxpayer.
By virtue of subparagraph 2 of paragraph 1 of Article 31 of the Tax Code of the Russian Federation, tax authorities have the right to conduct tax audits in the manner prescribed by this Code.
Subparagraph 2 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation establishes that the tax authorities are obliged to exercise control over compliance with the legislation on taxes and fees, as well as regulatory legal acts adopted in accordance with it.
Paragraph 3 of Article 7 of the Law “On the Tax Authorities of the Russian Federation” (as amended by Federal Law N 137-FZ) corresponds to this provision of the Tax Code of the Russian Federation, according to which tax authorities are granted the right to exercise tax control by conducting tax audits, as well as in other forms determined by the Code.
As follows from the materials of the case, the tax inspectorate, during the on-site tax audit of the taxpayer, sent requests to credit institutions for the provision of certificates on the operations and accounts of the company's counterparties - InvestStroy LLC, MegaStroy LLC, PK-Proekt LLC.
According to the motivational parts of the controversial requests for the provision of certificates on transactions on the accounts of InvestStroy LLC, MegaStroy LLC, PK-Project LLC, they were sent by the tax inspectorate in accordance with paragraph 2 of Article 86 of the Tax Code of the Russian Federation, paragraph 3 of Article 7 of the Law of the Russian Federation of March 21, 1991 N 943-1 “On the tax authorities of the Russian Federation”, in connection with the on-site tax audit of the organization.
The Arbitration Court found that the tax inspectorate sent requests to credit institutions for information on the operations and accounts of the taxpayer's counterparties - InvestStroy LLC, MegaStroy LLC, PK-Project LLC as part of an on-site tax audit of the company and in order to establish the fact real business transactions between the company and the specified counterparty.
Consequently, the tax inspectorate, within the competence established by the above regulatory legal acts, carried out these actions as part of tax control measures ...”
Decision of the FAS of the East Siberian District of September 15, 2010 in case N A33-2077 / 2010
“... During the audit, the tax inspectorate carried out tax control measures in the form of sending requests to credit institutions for the provision of an extract (statements) on transactions on the account (accounts) of the organization in relation to the counterparties of the taxpayer: Lima Limited Liability Company, Limited Liability Company “ WestCompany, Limited Liability Company Tekhstroyresurs, Trading House Silum, Closed Joint Stock Company Premier, Closed Joint Stock Company Garant, Limited Liability Company IC Grand, Limited Liability Company KrasTehProm, Companies with limited liability company “Bonus-Plus”, limited liability company “Garant-10”, IP Volkova E.N., limited liability company “Ontara”, limited liability company IC “Contractor”, limited liability company “Kobus”, Erika Limited Liability Company.
Subparagraph 2 of paragraph 1 of Article 32 of the Tax Code of the Russian Federation establishes that the tax authorities are obliged to exercise control over compliance with the legislation on taxes and fees, as well as regulatory legal acts adopted in accordance with it.
Paragraph 3 of Article 7 of the Law “On the Tax Authorities of the Russian Federation” (as amended by Federal Law N 137-FZ) corresponds to this provision of the Tax Code of the Russian Federation, according to which tax authorities are granted the right to exercise tax control by conducting tax audits, as well as in other forms determined by the Code.
According to the motivational parts of the controversial requests for the provision of information on transactions on the accounts of the company's counterparties, they were sent by the tax inspectorate in accordance with paragraph 2 of Article 86 of the Tax Code of the Russian Federation, paragraph 3 of Article 7 of the Law of the Russian Federation dated 03/21/1991 N 943-1 "On the tax authorities of the Russian Federation”, in connection with the on-site tax audit of the organization.
The arbitration court established that the tax inspectorate sent requests to credit institutions for the provision of certificates on transactions and accounts of the taxpayer's counterparties as part of an on-site tax audit of the company and in order to establish the fact of actual business transactions between the company and the specified counterparties.
Consequently, the tax inspectorate, within the competence established by the above regulatory legal acts, carried out these actions as part of tax control measures ...”
West Siberian District
Decree of the Federal Antimonopoly Service of the West Siberian District dated May 27, 2011 in case N A45-17090 / 2010
“...According to paragraph 15 of Article 7 of the Law of the Russian Federation of March 21, 1991 N 943-1 “On the Tax Authorities of the Russian Federation”, tax authorities are granted the right to control the fulfillment by credit institutions of the obligations established by the Tax Code of the Russian Federation in the manner approved by the federal executive body authorized to control and supervision in the field of taxes and fees, in agreement with the Central Bank of the Russian Federation. Tax authorities have the right to gain access to information constituting bank secrecy to the extent necessary to exercise such control.
Based on Article 93.1 of the Tax Code of the Russian Federation, which regulates the procedure for requesting documents (information) about a taxpayer, a payer of fees and a tax agent, or information about specific transactions, an official of a tax authority conducting a tax audit has the right to request from a counterparty or other persons who have documents (information) ) relating to the activities of the taxpayer being checked (payer of the fee, tax agent), these documents (information).
If, outside the framework of tax audits, the tax authorities have a justified need to obtain information regarding a specific transaction, an official of the tax authority has the right to demand this information from the participants in the transaction or from other persons who have information about this transaction.
The courts established that the Inspectorate, in connection with the on-site tax audit of Vira LLC, sent to the Bank a request dated March 12, 2010 N 4492 for the submission of documents (information) on requesting documents from the Bank in relation to BAS LLC, namely: opening an account; signature sample cards of persons entitled to sign banking documents; contract for settlement and cash services with changes and additions; customer service agreement using the “Bank-Client Online” system; information about the telephone number through which BAS LLC was connected to the Bank-Client Online system: a power of attorney of authorized persons to perform all actions related to servicing at the Bank (signing agreements, obtaining information about opening accounts, etc.); other agreements concluded by BAS LLC with the Bank.
The Bank justified the refusal to provide the requested information by saying that the tax authority has the right to request only those documents and information that are directly related to the activities of the audited taxpayer.
The materials of the case confirm that the requirement of 12.03.2010 N 4492 on the submission of documents (information) does not contain an indication of the specific transaction regarding which information is requested, does not contain information regarding which tax control measures the need to submit documents (information) arose. The requirement does not contain information that BAS LLC is a counterparty of the audited taxpayer Vira LLC, has any financial and economic relations with Vira LLC.
In accordance with Article 857 of the Civil Code of the Russian Federation, Article 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”, documents requested by the tax authority from the Bank, as containing information about the client and his accounts, are bank secrets. The Bank guarantees the secrecy of the bank account and information about the client.
The conclusion of the court of appeal that, under Article 93.1 of the Tax Code of the Russian Federation, when conducting a tax audit, the tax authority was granted the right to demand from third parties not any documents, but only documents relating to the activities of the taxpayer being audited, is justified.
The courts noted that the request of the Inspectorate for the provision of documents (information) dated 03/12/2010 did not contain information that BAS LLC is a counterparty of the audited taxpayer Vira LLC, has any financial and economic relations with Vira LLC, these documents do not reflect the existence of settlement and monetary relations between Vira LLC and the Bank's client, BAS LLC.
Under such circumstances, the court of appeal came to the correct conclusion that the Bank was not obliged to comply with the stipulated requirement of the tax authority, therefore, it was unreasonably held liable by the tax authority under paragraph 1 of Article 129.1 of the Tax Code of the Russian Federation ...”
Decree of the Federal Antimonopoly Service of the West Siberian District of July 8, 2009 N F04-3976 / 2009 (10033-A27-41) in case N A27-17947 / 2008-6
“... As follows from the case file, the Interdistrict Inspectorate of the Federal Tax Service No. 11 for the Kemerovo Region, in connection with the on-site tax audit of the Gratis Limited Liability Company, sent an instruction No. 475 dated 06.03. of the URSA Bank company of the agreement concluded between URSA Bank and Start limited liability company on opening a current account N 40702810108120000603, copies of the signature sample card and seal imprint, documents confirming the authority of the persons indicated in the card, as well as information on how the settlement account of Start LLC was opened (by power of attorney or in person), if by power of attorney, then indicate the institution of the notary office and the last name, first name, patronymic of the notary who executed the power of attorney.
By letter No. 1549/51 dated 26.03.2008, the Kuzbass branch of URSA Bank OJSC refused the tax authority to comply with this requirement, since an on-site tax audit is being carried out in relation to Gratis LLC, and copies of documents and information related to the activities of Start LLC are requested.
Based on Article 93.1 of the Tax Code of the Russian Federation, which regulates the procedure for requesting documents (information) about a taxpayer, a payer of fees and a tax agent or information about specific transactions, an official of a tax authority conducting a tax audit has the right to request from a counterparty or other persons who have documents (information) relating to the activities of the audited taxpayer (fee payer, tax agent), these documents (information).
If, outside the framework of tax audits, the tax authorities have a justified need to obtain information regarding a specific transaction, an official of the tax authority has the right to demand this information from the participants in the transaction or from other persons who have information about this transaction.
A person who has received a request to submit documents (information) shall fulfill it within five days from the date of receipt or, within the same period, report that they do not have the requested documents (information).
The courts of first and appeal instances, examining the evidence presented in the case file, found that the requirement of March 17, 2008 N 16-33-19 / 015918 to provide documents (information) does not contain indications of a specific transaction regarding which information is requested. Instruction No. 475 dated 06.03.2008 on requesting documents (information), on the basis of which a request No. 16-33-19/015918 dated 17.03.2008 was issued to URSA Bank, does not contain information on the provision of documents (information) in connection with the with respect to LLC “Gratis” field tax audit…”
Northwestern District
Decree of the Federal Antimonopoly Service of the North-Western District of August 10, 2010 in case N A56-73208 / 2009
“... The courts of the first and appeal instances, having examined the evidence presented in the case file, found that the requirement of the Inspectorate dated 08.19.2009 N 13/20137 for the Bank to provide documents (information) in relation to AZOT Trading House LLC does not contain indications of a specific transaction for which the information is requested. Order No. 4091 dated 14.08.2009, on the basis of which the said demand was made to the Bank, states that the documents are requested in connection with the on-site tax audit of Tekhnosnab LLC. The order does not contain any information that Trading House Azot LLC, the Bank's client, is a counterparty of the audited taxpayer, has any financial and economic relations with Tekhnosnab LLC. There is no such information in the request sent to the Bank.
Since the courts established that the Bank refused to comply with the Inspectorate’s requirement to submit bank documents relating to the activities of LLC Trading House Azot, on the grounds that an on-site tax audit was carried out in relation to LLC Tekhnosnab, and the Inspectorate did not prove that the requested documents relate to activities of the audited taxpayer, the cassation instance considers it correct that the courts concluded that the tax authority unreasonably held the Bank liable under paragraph 2 of Article 129.1 of the Tax Code of the Russian Federation ...”
Resolution of the Federal Antimonopoly Service of the North-Western District of 04.08.2010 in case N A56-73201 / 2009
“... The courts of first and appeal instances, having examined the evidence presented in the case file, established that the requirement of the Inspectorate dated August 19, 2009 N 13/20019 for the Bank to submit documents (information) in relation to Neftesnab LLC, MakTehStroy LLC and Oilservice LLC ” does not contain indications of a specific transaction in respect of which information is requested. In the order of the Office of the Federal Tax Service for the city of Moscow dated 12.08.2009 N 14-14 / [email protected], on the basis of which the mentioned requirement was submitted to the Bank, it is indicated that the documents are requested in connection with the on-site tax audit of Trade House Fuel Supply of Airports LLC. The order does not contain any information that Neftesnab LLC, MakTehStroy LLC and Oilservice LLC, the Bank's clients, are counterparties of the audited taxpayer, have any financial and economic relations with LLC Trade House Fuel Supply of Airports. There is no such information in the request sent to the Bank.
In the case under consideration, the courts of first and appeal instances established and the materials of the case confirm that the Inspectorate did not prove that the requested documents relate to the activities of the taxpayer being checked by the Department of the Federal Tax Service for the city of Moscow. Moreover, LLC “MakTechStroy” and LLC “Oilservice” are contractors of the suppliers of the organization, in respect of which additional tax control measures are being taken, that is, there could not be any information about LLC “TD “Fuel Supply of Airports” there. Also, the Inspectorate did not prove the repetition of the violation committed by the Bank (there is no decision of 19.01.2010 in the case materials).
The legal regime of banking secrecy is also regulated by Article 857 of the Civil Code of the Russian Federation, in accordance with the provision of which the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
Under these circumstances, the cassation instance considers correct the conclusions of the courts on the unreasonable bringing of the Bank to liability by the tax authority under paragraph 2 of Article 129.1 of the Tax Code of the Russian Federation ...”
Resolution of the Federal Antimonopoly Service of the North-Western District of July 30, 2010 in case N A56-50380 / 2009
“... It follows from the materials of the case and the courts have established that the requirement of March 11, 2009 N 13/04594 to submit documents in respect of INTELROS LLC does not contain indications of a specific transaction regarding which information is requested. In the order dated 03.03.2009 on requesting documents (information), on the basis of which the said request was made to the Bank, it is indicated that the documents are requested in connection with the in-house tax audit of Alliance Company LLC.
Information that the Bank's client (LLC INTELROS) is a counterparty of the audited taxpayer does not contain either the instruction dated 03.03.2009 or the request No. 13/04594 dated 11.03.2009.
In addition, in the contested decision, the Inspectorate also did not provide any evidence to confirm that INTELROS LLC is a counterparty of Alliance Company LLC and the requested documents relate to the activities of the audited taxpayer and affect its obligation to pay taxes.
In view of the foregoing, the courts came to the correct conclusion that the tax authority failed to prove that the documents requested from the Bank relate to the activities of the taxpayer being audited…”
Decree of the Federal Antimonopoly Service of the North-Western District of February 26, 2010 in case N A56-28828 / 2009
“... It follows from the materials of the case that the Interregional Inspectorate of the Federal Tax Service for the largest taxpayers N 10 in connection with the on-site tax audit of the open joint-stock company "Khabarovsk shipbuilding plant" (hereinafter - OJSC "Khabarovsk shipbuilding plant") sent an order dated 12/16/2008 N 16-12 / 778 (vol. 1, sheet 10) to the Inspectorate – 11) on requesting from the Khabarovsk branch of OJSC JSCB “Bank of Moscow” copies of documents of the Bank's client – NordYukon Limited Liability Company (hereinafter – NordYukon LLC).
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 16896/08 dated March 31, 2009 defines the legal position according to which a bank, like any entity, which has documents (information) relating to the activities of the taxpayer being audited, in accordance with Article 93.1 of the Tax Code of the Russian Federation, is subject to liability established by Article 129.1 of the Tax Code of the Russian Federation.
The materials of the case confirm that the requirement dated 25.12.2008 N 13/24320 to provide documents (information) in respect of NordYukon LLC does not contain indications of a specific transaction regarding which information is requested. In the order dated 16.12.2008 on requesting documents (information), on the basis of which the said request was made to the Bank, it is indicated that the documents are requested in connection with an on-site tax audit of OAO Khabarovsk Shipbuilding Plant. The instruction does not contain any information that the Bank's client (NordYukon LLC) is a counterparty of the audited taxpayer, has any financial and economic relations with Khabarovsk Shipbuilding Plant OJSC. These data are not given in the request sent to the Bank either. JSCB “Bank of Moscow” in its objections to the act dated 27.01.2009 N 13-08 / 2 (case file 16 - 17) referred to the fact that documents (information) were requested from it in relation to an unverified taxpayer; these documents do not reflect the existence of settlement and monetary relations between OJSC Khabarovsk Shipbuilding Plant and the Bank's client. However, in the contested decision, the Inspectorate did not provide any evidence to confirm that NordYukon LLC is a counterparty of Khabarovsk Shipbuilding Plant OJSC and the requested documents relate to the activities of the taxpayer being checked.
In view of the foregoing, the court of appeal concluded that the tax authority had not properly substantiated that the documents requested from the Bank related to the activities of the audited taxpayer…”
3.4. Conclusion from judicial practice: If the bank provides the tax authority with an agreement on opening a bank account and a card with sample signatures and a seal in connection with tax control measures, this is not a violation of bank secrecy.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Far Eastern District dated February 4, 2009 N F03-28/2009 in case N A51-6927/200837-185
“... As follows from the case file, on the basis of the order of the Inspectorate of the Federal Tax Service for the city of Petropavlovsk-Kamchatsky on the reclamation of documents (information) dated 10.01.2008 N 11-14 / 132 by the inspection in accordance with Article 93.1 of the Tax Code of the Russian Federation (hereinafter - the Russian Federation) a request dated February 14, 2008 N 14-09 / 003671 was issued to the bank for the provision of an agreement for opening settlement accounts of OOO Restrakt”; cards with sample signatures and seals of LLC "Restrakt" in connection with the implementation of additional tax control measures in relation to the specified company.
By letter No. 671 of February 21, 2008, the bank refused to provide documents to the tax authority with reference to Article 857 of the Civil Code of the Russian Federation and Article 26 of Federal Law No. 395-1 of December 2, 1990 “On Banks and Banking Activities” (hereinafter referred to as Law No. -one).
Similar jurisprudence:
Far Eastern District
Note: In the Ruling cited below, the court also considered justified the demand of the tax authority to provide an extract on transactions on the taxpayer's settlement accounts.
Decree of the Federal Antimonopoly Service of the Far Eastern District dated February 3, 2009 N F03-29/2009 in case N A51-6926/200837-186
“... As follows from the case file, the Inspectorate of the Federal Tax Service for the city of Petropavlovsk-Kamchatsky, in connection with the implementation of additional tax control measures by Artis LLC, sent an order dated January 10, 2008 N 11 to the Inspectorate of the Federal Tax Service for the Frunzensky District of Vladivostok -14/134 on requesting from LLC "Primterkombank" an agreement on opening a settlement account, a card of sample signatures, statements on operations on settlement accounts for 2005.
By letter No. 671-10 dated February 21, 2008, the bank refused to provide documents with reference to Article 857 of the Civil Code of the Russian Federation and Article 26 of the Federal Law “On Banks and Banking Activity”.
Based on paragraph 1 of Article 93.1 of the Tax Code of the Russian Federation, an official of a tax authority conducting a tax audit has the right to demand from the counterparty or from other persons who have documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited, these documents (information) . According to paragraph 5 of the said article, the person who has received the demand for the provision of documents (information) fulfills it within five days from the date of receipt or, within the same period, reports that he does not have the requested documents (information). Clause 6 of Article 93.1 of the Tax Code of the Russian Federation also provides that refusal to provide documents requested during a tax audit or failure to submit them within the established time limits is recognized as a tax offense and entails liability under Article 129.1 of the Tax Code of the Russian Federation.
Thus, the refusal of the bank to provide the tax authority with the documents required for the purposes of tax control is directed against the control functions of the tax authority ...”
Northwestern District
Decree of the Federal Antimonopoly Service of the North-Western District of 08/07/2009 in case N A56-41691 / 2008
“... It is clear from the materials of the case that the Interdistrict Inspectorate of the Federal Tax Service No. 26 for St. Petersburg (hereinafter referred to as Inspectorate No. 26), in connection with the tax control measures in relation to Tekhlen LLC and Nickeltrade LLC, sent instructions to the Inspectorate from 06/25/2008 on requesting from the Company copies of contracts, signature cards and seals, powers of attorney and other documents relating to the activities of these legal entities. The Inspectorate, on the basis of the above instructions in accordance with Article 93.1 of the Tax Code of the Russian Federation, sent the Company requests dated 06/27/2008 N 14-07-14 / 06880 and 14-07-14 / 06857 with a proposal to submit these documents to the tax authority.
The company in letters dated 23.07.2008 N 044-08/3963 and 044-08/3964 informed the Inspectorate that the requested documents do not relate to the information that it is obliged to submit to the tax authority.
On the basis of Article 93.1 of the Tax Code of the Russian Federation, an official of a tax authority conducting a tax audit has the right to demand from the counterparty or from other persons who have documents (information) relating to the activities of the taxpayer (fee payer, tax agent) being audited, these documents (information).
Consequently, if the tax authority acts within the powers granted to it, it has the right, in accordance with the procedure established by law, to demand from banks Required documents(information), including those containing information related to banking secrecy.
Therefore, the Company's argument that the requirements of the tax authority to submit documents (information) contradict the content of Article 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”, which obliges banks not to disclose information constituting banking secrecy, is reasonably recognized court unreasonable…”
Resolution of the Federal Antimonopoly Service of the North-Western District of 04/06/2009 in case N A56-33797 / 2008
“... From the materials of the case, it is clear and the courts have established that the Interdistrict Inspectorate of the Federal Tax Service N 2 for the Novgorod Region, the Interdistrict Inspectorate of the Federal Tax Service N 2 for the Tver Region (hereinafter - MIFTS N 2 for the Tver Region), the Interregional Inspectorate of the Federal Tax Service for the largest taxpayers No. 8 in connection with the conduct of cameral tax audits of LLC Starorussky Myasnoy Dvor, OJSC NPK Severnaya Zarya and tax control measures in relation to LLC Apollo and LLC Kassandra were sent instructions dated 14.02.2008, dated 03.03 .2008 and dated May 15, 2008 on requesting from the Company copies of contracts, signature cards and seals, powers of attorney and other documents relating to the activities of these legal entities. The Inspectorate, on the basis of the above instructions in accordance with Article 93.1 of the Tax Code of the Russian Federation, sent to the Company requirements dated 22.02.2008 No. 14-07-14/01732, dated 13.03.2008 No. .2008 N 14-07-14/05458 with a proposal to submit these documents to the tax authority.
The Company in letters dated 06.03.2008 N 111-08/1117, dated 03/24/2008 N 042-04/844 and 042-04/845 and dated 02.06.2008 N 111-08/2988 informed the Inspectorate that the requested documents were not relate to the information that it is obliged to provide to the tax authority.
In connection with the non-fulfillment by the Company of its requirements, the Inspectorate drew up an act dated 12.08.2008 and made a decision dated 05.09.2008 N 14-31 / 64 to bring it to tax liability on the basis of paragraph 1 of article 129.1 of the Tax Code of the Russian Federation for unlawful failure to report information to the tax authority in the form of a penalty 3000 rub. fine.
According to paragraph 2 of Article 857 of the Civil Code of the Russian Federation, information constituting banking secrecy may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
By virtue of paragraph 7 of article 93.1 of the Tax Code of the Russian Federation, by order of the Federal Tax Service of December 25, 2006 N SAE-3-06 / [email protected] approved the Procedure for the interaction of tax authorities on the execution of orders for the reclamation of documents. The grounds for the tax authorities to demand documents in accordance with Article 93.1 of the Tax Code of the Russian Federation are the conduct of a tax audit, additional tax control measures, the need to obtain information about a specific transaction outside the framework of tax audits.
Consequently, if the tax authority acts within the powers granted to it, it has the right, in accordance with the procedure established by law, to demand from banks the necessary documents (information), including those containing information related to banking secrecy ... ”
4. Provision of information constituting banking secrecy at the request of the Pension Fund and the Social Insurance Fund of the Russian Federation
In judicial practice, when applying the provisions of Art. 857 of the Civil Code of the Russian Federation, as well as the norms of the Federal Law of 02.12.1990 N 395-1 “On Banks and Banking Activity” (hereinafter referred to as the Law on Banks and Banking Activity), concerning banking secrecy, questions arise about whether they have the right Pension Fund and Foundation social insurance The Russian Federation to request information constituting bank secrecy about the recipients of the relevant funds.
4.1. Conclusion from judicial practice: The Pension Fund of the Russian Federation is not among the bodies authorized to receive information protected by the Law on Banks and Banking in connection with the death of the account holder.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the West Siberian District dated February 12, 2010 in case N A75-4120 / 2009
“... The courts have established and it follows from the materials of the case that the Pension Fund transferred to the account of Malov D.M. pension through the branch of JSC "Gazprombank" in the period from March 21, 2008 to July 16, 2008 in the total amount of 42,213.28 rubles.
On September 8, 2008, the Pension Fund sent a claim to the Bank demanding the return of the overpaid amount of the pension due to the death of L.M. or court decisions.
On the basis of Part 5 of Article 26 of the Federal Law “On Banks and Banking Activity”, in the event of the death of their owners, certificates of accounts and deposits are issued by a credit institution to persons indicated by the owner of an account or deposit in a testamentary disposition made by a credit institution, to notaries’ offices for hereditary cases on deposits of deceased depositors, and in respect of accounts of foreign citizens - to foreign consular institutions.
Thus, as correctly pointed out by the Court of Appeal, the legislator does not include the Pension Fund among the persons authorized to receive information protected by law…”
4.2. Conclusion from judicial practice: The Social Insurance Fund of the Russian Federation, in the event of an erroneous transfer of funds, is not entitled to require the bank to provide information about the person who received them.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Moscow District of 07/05/2012 in case N A40-105223 / 11-46-935
“... In accordance with Art. 834 of the Civil Code of the Russian Federation, legal entities (banks and other credit organizations) that accept deposits (deposits) in accordance with the law are not entitled to transfer funds in deposits (deposits) to other persons. The funds in the account do not belong to the bank, but to the depositor. The right to dispose of these funds belongs to the depositor, his proxies, and after the death of the depositor - to his heirs.
In accordance with Art. 845 of the Civil Code of the Russian Federation, the funds on the account of the client of the bank belong to the client, the bank is not entitled to determine and control the directions of use of the client's funds, to establish other restrictions not provided for by law or the bank account agreement on his right to dispose of the funds at his own discretion.
According to Art. 857 of the Civil Code of the Russian Federation, the Bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client, since this information is a bank secret and can only be provided to state bodies and their officials exclusively and in the manner prescribed by law.
In addition, according to part 5 of Art. 26 of the Federal Law “On Banks and Banking Activities”, certificates on accounts and deposits in the event of the death of their owners are issued by a credit institution to persons indicated by the owner of an account or deposit in a testamentary disposition made by a credit institution, to notary offices in the inheritance cases they are processing on the contributions of deceased depositors , and in respect of accounts of foreign citizens - to foreign consular institutions.
The list of persons authorized to receive information about the movement of funds on accounts and deposits in the event of the death of their owner is determined by the Federal Law of 02.12.1990 N 395-1 “On Banks and Banking Activity” and is closed.
In this regard, the courts, having established that the plaintiff does not belong to the persons having the right to receive the requested information, rightfully refused to satisfy the claims.
At the same time, the courts reasonably rejected the plaintiff's reference to paragraphs. 3 p. 4 art. 8 of the Federal Law of July 27, 2006 N 149-FZ “On information, information technology and on the protection of information”, since the specified norm, according to which access to information about the activities of state bodies and bodies cannot be restricted local government, as well as on the use of budgetary funds (with the exception of information constituting a state or official secret), is not applicable to the legal relations under consideration, since it determines the right of a third party to receive information from state bodies and local governments regarding own activities named bodies, including those related to the use of budgetary funds.
Information about persons who received funds from the accounts of individuals after the death of depositors cannot be regarded as information about the use of budgetary funds, since the amount insurance coverage for a specific period, credited to a citizen’s bank account after his death, regardless of the validity of the basis for its crediting, acquires the status of property and is part of the inheritance, that is, the bank issues to the heir not budgetary funds, but hereditary property.
Thus, the grounds established by law or the relevant obligation, by virtue of which the bank may be required to provide the plaintiff with the requested information, were not identified by the court.
The factual circumstances of the case were correctly established by the courts, the evidence was examined in full, the conclusions of the courts correspond to the evidence available in the case file and the norms of the current legislation ...”
5. Provision of information constituting bank secrecy at the request of the Central Bank of the Russian Federation
In accordance with paragraph 1 of Art. 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as credit history bureaus on the grounds and in the manner prescribed by law. Such information can be provided to state bodies and their officials only in cases and in the manner established by law (clause 2 of article 857 of the Civil Code of the Russian Federation).
In accordance with Part 5 of Art. 26 of December 2, 1990 N 395-1 of the Federal Law “On Banks and Banking Activities” Chairman Central Bank The Russian Federation has the right to request from a credit institution information on transactions, accounts and deposits of individuals in the event of an audit in respect of them in accordance with the Federal Law “On Combating Corruption” in terms of information on income, expenses, property and obligations property nature compliance with prohibitions and restrictions.
Based on Art. 57 of the Federal Law of July 10, 2002 N 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)”, in order to carry out its functions, the Central Bank of the Russian Federation in accordance with the list established by the Board of Directors, has the right to request and receive from credit institutions the necessary information about their activities to demand clarification on the information received.
When applying the above rules in judicial practice, questions arise about whether the Central Bank of the Russian Federation has the right to request from credit institutions information related to bank secrecy.
5.1. Conclusion from judicial practice: The Central Bank of the Russian Federation is authorized to receive information constituting, in accordance with the Law on Banks and Banking Activities, bank secrecy.
Arbitrage practice:
Decision of the Supreme Court of the Russian Federation of October 29, 2002 N GKPI02-860
“…The foundations of the legal status of the Central Bank of Russia are established by the Constitution of the Russian Federation.
central bank Russia has exclusive rights to issue money, protect and ensure the stability of the ruble (parts one and two of Article 75 of the Constitution of the Russian Federation). These powers, by their legal nature, relate to the functions of state power, since their implementation involves the use of measures of state coercion. That is, the Central Bank of Russia is defined by the Constitution of the Russian Federation as a body that acts on behalf of the state, endowed with certain powers.
According to Art. 1 of the Federal Law “On the Central Bank of the Russian Federation”, its status, goals of activity, functions and powers are determined by the Constitution of the Russian Federation, this Federal Law and other federal laws.
According to Art. 55 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”<*>The Bank of Russia is the body of banking regulation and banking supervision over the activities of credit institutions. The Bank of Russia exercises constant supervision over the observance by credit institutions and banking groups of banking legislation, Bank of Russia regulations, and mandatory ratios established by them (Part 1).
——————————–
<*>Apparently, there is a misprint in the text of the document: it refers to Article 56 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” dated July 10, 2002 N 86-FZ, and not Article 55.
Part 2 of Art. 57 of the Federal Law “On the Central Bank of the Russian Federation”, it is determined that in order to carry out its functions, the Bank of Russia, in accordance with the list established by the board of directors, has the right to request and receive from credit institutions the necessary information about their activities, to demand clarifications on the information received.
In accordance with Art. 73 of this Law, in order to exercise its functions of banking regulation and banking supervision, the Bank of Russia conducts inspections of credit institutions (their branches), sends them binding orders to eliminate violations identified in their activities and applies the sanctions provided for by this Federal Law in relation to violators (part 1 of this Federal Law). one).
In accordance with Art. 26 of the Federal Law “On Banks and Banking Activities” of December 2, 1990 N 395-1 (with subsequent amendments and additions) The Bank of Russia is not entitled to disclose information about accounts, deposits, as well as information about specific transactions and operations from credit reports organizations and received by them as a result of the performance of licensing, supervisory and control functions, with the exception of cases provided for by federal laws (part 6).
For the disclosure of banking secrecy, the Bank of Russia, its officials and employees shall be liable, including compensation for damages, in accordance with the procedure established by the Federal Law.
Obviously, the proper performance by the Bank of Russia of the functions and powers assigned to it by the Constitution of the Russian Federation and Federal Laws, in particular, supervision over the activities of credit institutions and banking groups (banking supervision), their compliance with banking legislation, etc., and the achievement of the goals enshrined in them activities of the Bank of Russia is impossible without the access of the Bank of Russia during its inspections of credit institutions and their branches to the information necessary for this, including that constituting a banking (commercial) secret.
So, within the meaning of Art. 74 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”, the Bank of Russia has the right to receive and verify documents of credit institutions (their branches) without any restrictions for the performance of precisely its functions of banking regulation and banking supervision.
The fact that the Bank of Russia is not listed as a subject entitled to receive information on accounts and deposits of individuals in Part 3 of Art. 26 of the Federal Law “On Banks and Banking Activities”, does not indicate that he does not have such a right, since it follows from the content of parts 6 and 9 of the same article ...”
Similar jurisprudence:
Acts of higher courts
Determination of the Supreme Arbitration Court of the Russian Federation of November 11, 2009 N VAC-14906/09 in case N A40-13792 / 09-120-18
“... As established by the courts, in the course of an audit by the Bank of Russia on application No. 26 dated 07.11.2008, Stroyindbank was requested to provide certified copies of account statements of individual bank customers. In connection with the failure by Stroyindbank to provide the requested documents within the period specified in the application, an act was drawn up on counteracting the inspection dated 11/11/2008 N 1 and an order was issued on 11/17/2008 N 55-21-12 / 21828dsp to provide duly certified copies of these documents within a certain period .
According to Part 2 of Article 857 of the Civil Code of the Russian Federation, information constituting banking secrecy may be provided only to the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases provided for by law.
Having assessed the evidence presented by the parties from the standpoint of Article 71 of the Arbitration Procedure Code of the Russian Federation, and also considering that the Law on Banks and Banking Activities is special in relation to the Civil Code of the Russian Federation, the courts concluded that, despite the fact that the Bank of Russia in Article 26 of the Law “On Banks and Banking Activities” is not indicated as a subject entitled to receive information on accounts and deposits of individuals, this does not indicate the absence of such a right, since it follows from the content of paragraphs 7 and 10 of the same articles imposing on the Bank of Russia the duty not to disclose information constituting bank secrecy and providing for liability for violation of this requirement. In addition, Articles 57 and 73 of Federal Law No. 86-FZ of July 10, 2002 “On the Central Bank of the Russian Federation (Bank of Russia)” grant the Bank the right to receive and verify reports and other documents of credit institutions in order to carry out the functions of banking regulation and banking supervision.
A similar legal position is reflected in the Decision of the Supreme Court of the Russian Federation of October 29, 2002 N GKPI02-860.
In view of the foregoing, the courts, guided by part 1 of article 198, parts 2 and 3 of article 201 of the Arbitration Procedure Code of the Russian Federation, refused to satisfy the stated requirements due to the compliance of the disputed order with the requirements of the law and the lack of evidence of a violation of the rights and legitimate interests of the applicant ...”
Moscow District
Decree of the Federal Antimonopoly Service of the Moscow District dated September 7, 2009 N KA-A40 / 8497-09 in case N A40-13792 / 09-120-18
“... The subject of litigation in the court of first instance, the court of appeal, as the audit of the case materials showed, was the legality of the Bank of Russia order of November 17, 2008 N 55-21-12 / 21828 dsp, to which the commercial bank was asked to submit certified duly copies of account statements of individual clients of the named commercial bank. The said prescription commercial bank was executed and challenged in arbitration proceedings on the grounds of non-compliance with the requirements of Article 857 of the Civil Code of the Russian Federation, Article 26 of the Federal Law “On Banks and Banking Activity”.
The Central Bank of Russia has exclusive rights to issue money, protect and ensure the stability of the ruble (Part 1 and Part 2 of Article 75 of the Constitution of the Russian Federation). These powers, by their legal nature, relate to the functions of state power, since their implementation involves the use of measures of state coercion, i.e. The Central Bank of Russia is defined as a body acting on behalf of the state and endowed with certain powers.
Thus, the Central Bank of Russia has a special constitutional and legal status.
According to Part 1 of Article 56 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”, the Bank of Russia is the body of banking regulation and banking supervision over the activities of credit institutions. The Bank of Russia exercises constant supervision over the observance by credit institutions and banking groups of the banking legislation, regulations of the Bank of Russia, and the mandatory ratios established by them.
Part 2 of Article 57 of the Federal Law “On the Central Bank of the Russian Federation” determines that in order to carry out its functions, the Bank of Russia, in accordance with the list established by the Board of Directors, has the right to request and receive from credit institutions the necessary information about their activities, to demand clarifications on the information received .
In accordance with Article 26 of the Federal Law “On Banks and Banking Activities” (with subsequent amendments and additions), the Bank of Russia is not entitled to disclose information about accounts, deposits, as well as information about specific transactions and operations from the reports of credit institutions and obtained by him as a result of performance of licensing, supervisory and control functions, with the exception of cases provided for by federal laws.
By virtue of Part 5 of Article 57 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”, information received from legal entities on specific transactions is not subject to disclosure without the consent of the legal entity, except as otherwise provided by federal laws.
The right of the Bank of Russia to receive information from managers and authorized employees of the audited credit institution and its branches about transactions, accounts and deposits of individuals, to make copies of received documents, to demand and receive copies of any records stored in local area networks and autonomous computer systems , as well as the transcripts of these records, as well as the obligation of credit institutions and their branches to issue to the working group all the certificates and documents it needs, if necessary, make copies of them or provide the working group with the opportunity to make these copies independently, directly follow from the requirements of the aforementioned Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”, in particular, Articles 73, 74 in conjunction with Articles 1, 3, 7, 56, 57, 75, and from the content of Article 26 of the Federal Law “On Banks and Banking”.
The fact that the Bank of Russia is not listed as an entity entitled to receive information on accounts and deposits of individuals in Part 3 of Article 26 of the Federal Law “On Banks and Banking Activity” does not indicate that it does not have such a right, since it follows from the content of parts 6 and 9 of the same article…”
6. Provision of information constituting bank secrecy at the request of other bodies and persons
In accordance with paragraph 1 of Art. 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
Article 26 of the Federal Law of 02.12.1990 N 395-1 “On Banks and Banking” (hereinafter referred to as the Law on Banks and Banking) contains a list of documents constituting bank secrecy, as well as a list of persons who have the authority to request relevant information from the bank .
However, in judicial practice there are situations when a person who does not belong to the persons having access to such documents applies for the provision of information constituting a banking secret, and their receipt is necessary for the performance of the functions assigned to the specified person by the legislator.
6.1. Conclusion from judicial practice: The provision by a bank of information constituting banking secrecy, as part of the implementation of an agreement with a local government, which provides for the provision of relevant information to the latter in connection with the use of a subsidy, is not a violation of the Law on Banks and Banking Activities.
Arbitrage practice:
Determination of the Supreme Court of the Russian Federation of November 30, 2011 N 7-Г11-12
“... By a government decree Ivanovo region dated March 30, 2011 N 82-p approved subprogram “ Governmental support citizens in the field of mortgage lending” of the long-term target program of the Ivanovo region “Housing” for 2011-2015” and it was established that its financing is carried out at the expense of the regional budget within the limits of the expenditures approved by the law of the Ivanovo region on the regional budget for the next fiscal year and planning period.
Annex 1 to the subprogram is the procedure for providing subsidies to citizens participating in the subprogram for payment down payment when obtaining a mortgage housing loan or to repay the principal amount of the debt and pay interest on the mortgage home loan(hereinafter referred to as the Order).
According to paragraph 30 of the Procedure, the bank submits monthly, before the 10th day, to the local government information as of the 1st day on the facts of concluding bank account agreements with certificate holders, on refusal to conclude agreements, on their termination without crediting funds provided as a subsidy, and on the transfer of funds from a bank account to pay for the acquired residential premises.
The Acting Prosecutor of the Ivanovo Region applied to the Ivanovo Regional Court with an application for recognition as contrary to federal law and invalid from the moment of the adoption of subparagraph 4 of paragraph 7, paragraphs 5 and 6 of paragraph 29, paragraph 30, paragraph 33, paragraph 1 of paragraph 34 of the Order.
In accordance with Article 857 of the Civil Code of the Russian Federation, information constituting bank secrecy may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
In accordance with Article 9 of Federal Law No. 395-1 of December 2, 1990 “On Banks and Banking Activities”, a credit institution, on the basis of a state or municipal contract for the provision of services for state or municipal needs, may fulfill certain instructions of the Government of the Russian Federation, executive authorities subjects of the Russian Federation and local governments, to carry out operations with funds federal budget, budgets of subjects of the Russian Federation and local budgets and settlements with them, ensure the targeted use of budgetary funds allocated for the implementation of federal and regional programs. Such a contract should contain mutual obligations of the parties and provide for their responsibilities, conditions and forms of control over the use of budgetary funds.
Considering that within the framework of the implementation of the subprogram, an agreement was concluded with the bank providing for the submission of relevant information related to the use of the subsidy, the court reasonably disagreed with the prosecutor’s argument about violating bank secrecy and imposing on the bank duties unusual for it ...
... the decision of the Ivanovo Regional Court of September 20, 2011 to be left unchanged, the cassation presentation of the Prosecutor of the Prosecutor's Office of the Ivanovo Region participating in the case - without satisfaction ...”
6.2. Conclusion from judicial practice: If a party to a litigation cannot independently demand documents and information constituting banking secrecy from the bank, the court, on the basis of a reasoned request in the manner prescribed by the procedural legislation, has the right to request such documents.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Moscow District dated April 7, 2009 N KA-A40 / 2497-09 in case N A40-54818 / 07-76-299
“... Imposing in accordance with Art. 119 of the Arbitration Procedure Code of the Russian Federation a judicial fine on a bank, the court of first instance rightfully proceeded from the fact that the bank, without good reason, did not comply with the court rulings of 02/06/2008, 03/04/2008, 03/25/2008, 05/21/2008, 06/23/2008. , 07/15/2008, 08/28/2008, obliging OJSC CB "PROMBANK" to submit a card f. 0401026 with samples of signatures and a stamp of Stella LLC.
As can be seen from the case file, the original ruling of 08.02.2008 the court of first instance, guided by Art. 66 of the Arbitration Procedure Code of the Russian Federation, demanded from the bank a signature sample card of Stela LLC, account statements of Stella LLC, a bank account agreement, bank documents of Stela LLC according to expenditure transactions for the period 4th quarter of 2005, 2006 (case sheet 70 v. 2). Due to non-fulfilment this definition court by the bank, the latter was brought by the court as a third party by the ruling of 04.03.08, in which the bank was also asked to submit the said documents.
Then the court adopted 5 more definitions of similar content. However, the required signature card was never presented by the bank.
Under the above circumstances, the court rightfully imposed a court fine on the bank, as it established that the bank had failed to comply with set time the obligation to send to the court the documents named in the court rulings, did not provide evidence testifying to the validity of the reason for not submitting the documents, thereby showing a clear contempt of the court ...”
Similar jurisprudence:
Volga region
Decree of the Federal Antimonopoly Service of the Volga District dated March 5, 2011 in case N A72-457 / 2010
“... In accordance with paragraph 4 of Article 66 of the Arbitration Procedure Code of the Russian Federation, a person participating in a case and not having the opportunity to independently obtain the necessary evidence from the person who has it, has the right to apply to the arbitration court with a request to demand this evidence.
The petition must indicate the evidence, indicate what circumstances relevant to the case can be established by this evidence, indicate the reasons preventing the receipt of evidence, and its location.
Upon satisfaction of the petition, the court shall demand the relevant evidence from the person who has it.
The court refused to satisfy the petition for the reclamation of extracts from the debtor's settlement (personal) accounts, motivating the refusal by the fact that the balance sheet cannot confirm the facts of the issuance and repayment of loans, that is, it does not apply to admissible and relevant evidence.
Since the debtor's settlement accounts are opened in other banks and Sberbank of Russia OJSC is not a person to whom, in accordance with Article 26 of the Federal Law "On Banks and Banking Activity" dated 02.12.1990 N 395-1, information on operations, accounts and deposits can be provided clients of a credit institution constituting banking secrecy, Sberbank of Russia OJSC could not independently obtain the documents specified by it in the application.
Under such circumstances, the court unlawfully refused to satisfy the petition of Sberbank of Russia OJSC to request extracts from the debtor's settlement accounts for payments to repay the debt to LLC Vekha-Invest ...”
7. Provision of information constituting banking secrecy at the request of clients
In accordance with paragraph 2 of Art. 857 of the Civil Code of the Russian Federation, information constituting bank secrecy may be provided only to the clients themselves or their representatives, as well as credit history bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.
By providing the relevant information, the bank must properly identify the person entitled to receive it.
7.1. Conclusion from judicial practice: The Bank has the right to refuse to provide the client with information constituting banking secrecy if the request is sent by post and the bank is unable to identify the client.
Arbitrage practice:
Note: The Decree below indicates that there is a condition in the agreement on the obligation of the bank to verify and identify the applications submitted to the bank in order to maintain bank secrecy.
Decree of the Federal Antimonopoly Service of the Ural District dated July 20, 2011 N F09-3728 / 11 in case N A60-39542 / 2010
“... As established by the courts and follows from the case file, on February 14, 2006 between the entrepreneur Shmakov M.The. (client) and the bank concluded an agreement N 251 bank account.
In accordance with clause 8.4 of this agreement, the parties entrusted each other with responsible storage of settlement documents on paper, on the basis of which operations are carried out on the account, for five years and undertook to provide these documents at the request of the interested party within three days.
Entrepreneur Shmakov M.V. On 10/15/2010, he sent applications No. 7-jur, 8-jur to the bank for the provision of copies of the above documents.
By virtue of Art. 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client. Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
Clause 2.2 of the agreement provides for the bank's obligation to ensure secrecy about transactions and the client's account in accordance with the Bank's Charter and current legislation.
Assessing according to the rules provided for by Art. 71 of the Arbitration Procedure Code of the Russian Federation, the terms of the bank account agreement, the evidence presented in the case, as well as the arguments and objections of the parties, the courts concluded that the defendant's requirements for the execution of documents for providing information on the movement of funds on the account are aimed at protecting information, referred in accordance with the current legislation to banking secrecy (Article 857 of the Civil Code of the Russian Federation, Article 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”).
Compliance with the procedure for checking the client's request for the issuance of relevant documents stipulated by the contract is necessary condition provision and guarantee of banking secrecy. In order to protect banking secrecy, the Bank is obliged to check and identify the applications submitted to the Bank. In connection with the foregoing, the arguments of the applicant of the cassation appeal, based on disagreement with the said formality, are rejected.
Since the plaintiff, in violation of Art. 65 of the Arbitration Procedure Code of the Russian Federation did not provide evidence confirming the fact of compliance with the procedure established by the contract for applying to the bank with an application for the issuance of documents, the courts refused to satisfy the claim.
Grounds for reassessment of the conclusions of the courts at the cassation instance by virtue of Art. 286 of the Arbitration Procedure Code of the Russian Federation is not available ...”
8. Provision of information constituting bank secrecy in the course of enforcement of judicial acts
According to part 8 of Art. 69 of the Federal Law of October 2, 2007 N 229-FZ “On enforcement proceedings” (hereinafter referred to as the Law on Enforcement Proceedings) in the absence of information about the debtor’s property bailiff requests this information from tax authorities, other authorities and organizations, based on the amount of debt, determined in accordance with part 2 of this article. The bodies that carry out state registration rights to property, persons keeping records of rights to securities, banks and other credit organizations, the bailiff requests necessary information with the written permission of the senior bailiff.
In such cases, the exercise of the right to receive information about property status the debtor has a number of restrictions related, in particular, to the need to comply with the right to bank secrecy, which is granted to the debtor by the Federal Law of 02.12.1990 N 395-1 “On Banks and Banking Activity”.
8.1. Conclusion from judicial practice: The bailiff-executor has the right to request information about cash deposits individuals in connection with the execution of a court order - in this case, the bank or other credit institution must provide relevant information.
Arbitrage practice:
Resolution of the Constitutional Court of the Russian Federation of May 14, 2003 N 8-P
“...Thus, the interrelated provisions of paragraph 2 of Article 12 and paragraph 2 of Article 14 of the Federal Law “On Bailiffs” insofar as they are mandatory for banks, other credit organizations and their employees of the requirements of the bailiff to provide him - in connection with the execution them court rulings - information about the monetary deposits of individuals, in their constitutional and legal interpretation mean that the bailiff, acting within the public function to enforce the court order, has the right to require the provision of information about the bank deposit of an individual, and a bank, other the credit institution is obliged to provide such information - within the limits of the debt recoverable in accordance with the executive document ... "
8.2. Conclusion from judicial practice: The bailiff has the right to request information from credit institutions in relation to the debtor only with the written permission of the senior bailiff or his deputy. The fact that such permission has been received must be indicated in the text of the request, or the permission itself must be sent to the credit institution.
Note: Federal Law of July 18, 2011 N 225-FZ in paragraph 8 of Art. 69 of the Law on Enforcement Proceedings were amended, according to which the bailiff has the right to request relevant information with the written permission of not only the senior bailiff, but also his deputy.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Moscow District dated May 6, 2010 N KA-A41 / 4017-10 in case N A41-29757 / 09
“... So, the courts indicated that the right to request the necessary information from organizations, including banks, as well as to receive explanations, information, certificates from them, was granted to the bailiff, paragraph 2, paragraph 1, Art. 64 of the Law on Enforcement Proceedings. However, the bailiff’s right to receive information about the debtor’s property status is not absolute, its implementation has a number of restrictions related, in particular, to the need to comply with the right granted to the debtor by the Federal Law “On Banks and Banking Activity” to bank secrecy regarding his accounts.
Paragraph 8 of Article 69 of the Law on Enforcement Proceedings provides that if there is no information about the debtor's property, then the bailiff requests this information from tax authorities, other authorities and organizations, based on the amount of debt determined in accordance with part 2 this article. At the same time, the bailiff requests the necessary information from the bodies that carry out state registration of rights to property, persons that keep records of rights to securities, banks and other credit organizations with the permission of the writing senior bailiff.
As established by the courts, permission to send requests to banks and other credit organizations was received by the bailiff; permission dated 21.07.2009 was drawn up in writing and signed by the senior bailiff Dmitrieva Yu.V.
At the same time, since the request of the bailiff-executor does not contain information that the permission of the senior bailiff was sent to the applicant, there is no reference in the text of the request to the existence of such permission, the courts concluded that the bailiff-executor did not comply with the requirements of para. 8 art. 69 of the Law on Enforcement Proceedings.
According to the conclusion of the courts, the indication in paragraph 8 of Art. 69 of the Law on Enforcement Proceedings that the bailiff requests information based on the amount of the debt indicates the need to report to the bank the amount of the debtor's debt to the recoverer in enforcement proceedings. At the same time, this condition is designed to protect the rights and legitimate interests of the debtor, to protect him from arbitrariness on the part of officials of the service bailiffs and exceeding the authority of bailiffs to obtain information about financial position debtor beyond the amount of the recoverable debt…”
8.3. Conclusion from judicial practice: The bailiff has the right to request information about the debtor from the bank in the amount provided for in Part 9 of Art. 69 of the Law on Enforcement Proceedings.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 1, 2010 in case N A39-1565 / 2010
“...According to Part 1 of Article 6 of Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings) and Article 14 of Federal Law No. 118-FZ of July 21, 1997 “On Bailiffs” (hereinafter - The Law on Bailiffs), the legal requirements of the bailiff are binding on everyone and are subject to strict compliance throughout the Russian Federation.
Article 64 of the Law on Enforcement Proceedings provides that in the process of fulfilling the requirements of executive documents, the bailiff has the right to request the necessary information from individuals, organizations and bodies located on the territory of the Russian Federation, as well as on the territories of foreign states, in the manner established by the international agreement of the Russian Federation, receive explanations, information, references from them.
Information to the extent necessary for the performance of official duties by the bailiff is provided at his request in the form of certificates, documents and their copies free of charge (or, with the consent of the bailiff, it can be provided on electronic media using, if necessary, organizational and technical measures to protect information) and within the time limit set by them.
The requirement to provide relevant information, by virtue of Article 64 of the Law on Enforcement Proceedings, relates to enforcement actions.
In part 8 of Article 69 of the Law on Enforcement Proceedings, it is established that if there is no information about the debtor's property, then the bailiff requests this information from tax authorities, other authorities and organizations, based on the amount of debt determined in accordance with part 2 of this article. At the same time, the bailiff requests the necessary information from the bodies that carry out state registration of rights to property, persons that keep records of rights to securities, banks and other credit organizations with the permission in writing of the senior bailiff.
At the same time, the exercise of the right to receive information about the debtor's property status has a number of restrictions related, in particular, to the need to comply with the right to bank secrecy granted to the debtor by Federal Law No. 395-1 of 02.12.1990 “On Banks and Banking Activity”.
According to paragraph 9 of Article 69 of the Law on Enforcement Proceedings, tax authorities, banks and other credit organizations may be requested to provide information on: 1) the name and location of banks and other credit organizations where the debtor's accounts are opened; 2) on the numbers of current accounts, the amount and movement of funds in rubles and foreign currency; 3) other valuables of the debtor kept in banks and other credit organizations.
From the documents submitted to the case, it follows that the bailiff in the request dated 13.01.2010 N 510 (paragraphs 1 - 3) obliged the Bank to provide, within three days from the date of receipt of the request, including information on the amount of the balance of the debt of Chugunova Y.E. . under a loan agreement; an extract indicating the dates and amounts of receipt of funds under the loan agreement; on the repayment of Chugunova Yew.E. the balance of the debt under the loan agreement (indicating a specific date).
Consequently it is actually a bailiff requested from the Bank information on the execution of Chugunova Yew.E. (debtor) to the Bank of obligations under the loan agreement of December 14, 2005 N 499027G0210317Х40830.
In view of the foregoing, the information requested by the bailiff in this part does not apply to information, the right to request which is provided for in part 9 of Article 69 of the Law on Enforcement Proceedings, and necessary to fulfill the requirements executive document in relation to the debtor – Chugunova Yew.E.
Consequently, the court of first instance made the correct conclusion that there was no event of an administrative offense in the actions of the Bank, therefore, it reasonably satisfied the stated requirement ...”
9. Provision of information constituting bank secrecy in bankruptcy proceedings
In accordance with paragraph 1 of Art. 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as credit history bureaus on the grounds and in the manner prescribed by law. Such information can be provided to state bodies and their officials only in cases and in the manner prescribed by law (Clause 2, Article 857 of the Civil Code of the Russian Federation).
When resolving disputes related to the refusal of banks to provide information to the manager in the bankruptcy procedure, it is also necessary to be guided by the provisions of the Federal Law of October 26, 2002 N 127-ФЗ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), which determine the powers of the manager in each of the procedures applied in bankruptcy, as well as the procedure for providing information relating to the debtor.
9.1. Conclusion from judicial practice: The interim manager has the right to request from banks information regarding the debtor that constitutes bank secrecy.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Central District of October 13, 2010 in case N A35-724 / 2010
“... 12/14/2009 temporary manager of the IP of the head of the KFH Gadzhiyeva S.A. Grigorov Yu.I. applied to Rosselkhozbank OJSC with a statement (ref. N 07n-53) to provide information on the cash flow on the settlement accounts of the IP of the head of the KFH Gadzhiyeva S.A. N 40802810532140000017 and N 40702810732040000043 for carrying out financial analysis of the debtor and detection of transactions made in violation of the insolvency (bankruptcy) legislation.
By letter N 032-06-26 / 907 dated 12/28/2009, the Kursk RF, Rosselkhozbank OJSC, informed the interim manager of the IP of the head of the peasant farm Gadzhiyeva S.A. Grigorov Yu.I. that the information requested by him constitutes banking secrecy and cannot be provided, since the arbitration manager is not included in the circle of persons entitled to receive this information.
At the same time, according to the current legislation, bankruptcy procedures in the debtor's enterprise are regulated by the Federal Law “On Insolvency (Bankruptcy)”, which is special in relation to other legal norms.
In the Bankruptcy Law, among other things, the foundations of the legal status of an arbitration manager are fixed.
By virtue of the provisions of Art. 67 of the Federal Law “On Insolvency (Bankruptcy)”, the temporary manager is obliged to submit to the arbitration court a report on his activities, to which is attached a conclusion on the financial condition of the debtor and a justification for the possibility or impossibility of restoring the debtor’s solvency, the expediency of introducing subsequent procedures applied in the bankruptcy case of the debtor.
Thus, taking into account the specifics of the activity of an interim manager, his special legal status, the cassation board agrees with the conclusion of the courts that the proper exercise of the powers of an interim manager during the bankruptcy procedure in the debtor's enterprise is impossible without obtaining information relating to financial condition the debtor, which he has the right to request from state bodies and other persons who have the necessary information.
In addition, the Bankruptcy Law contains provisions according to which information about the debtor, his property, including property rights, and obligations requested by the interim manager from individuals, legal entities, state bodies, local governments, are provided by the indicated persons and bodies to the temporary manager within seven days from the date of receipt of the request of the arbitration manager without charging a fee (clause 1, article 20.3, clause 2, article 66 of the Law).
Based on the meaning of the above norms of substantive law, it follows that the Bankruptcy Law directly provides for the right of an interim manager to receive the information necessary for the implementation of his duties on the basis of a request and without charging a fee, and the Bank, as the owner of such information, is obliged to provide the applicant with the requested information ... "
Similar jurisprudence:
Acts of higher courts
Determination of the Supreme Arbitration Court of the Russian Federation of November 12, 2010 N VAS-14553/10 in case N A65-26944 / 2009-SG1-17
“... As can be seen from the submitted judicial acts, the interim manager Mikhailov V.E. a request was sent to the defendant to provide information on the settlement account of Unitech-Service CJSC. JSC "Ak Bars" Bank refused to provide this information, referring to Article 26 of the Federal Law "On Banks and Banking Activity".
Meanwhile, according to paragraph 1 of Article 66 of the Bankruptcy Law, the legislator includes the right to receive any information and documents relating to the debtor's activities among the rights of an interim manager.
Under these conditions, the courts of all instances made a reasonable conclusion that the bank's refusal to provide temporary manager Mikhailov V.E. the requested information is illegal. Based on the fact that the contested judicial acts comply with the law, the circumstances of the case, there are no grounds for raising the issue of their revision ...”
Moscow District
Decree of the Federal Antimonopoly Service of the Moscow District dated December 20, 2011 in case N A40-44523 / 11-139-346<*>
“... As established by the courts of first and appeal instances and follows from the materials of the case, the ruling of the Moscow Arbitration Court dated December 2, 2010 in case N A40-9922 / 10-71-528 B in relation to Beton Market LLC introduced a monitoring procedure. Sergey Nikolaevich Krasnov was approved as the interim manager of Beton Market LLC.
The courts established that the interim manager of Beton Market LLC filed a request for the provision of information necessary to fulfill his duties to Bank Vozrozhdenie (OJSC), in accordance with which he asked for information about the debtor - Beton Market LLC ., namely: the list open accounts, a list of closed accounts, the date of the last transaction for each account, information about the balance of funds on each account, information about the availability of file cabinets for each account, information about the movement of funds for each account (an extended statement indicating the purpose and reason for payment and information about the recipient (payer)) from 01/01/2008 to the date of sending the answer (closing the account).
Vozrozhdenie Bank (OJSC), by letter dated April 1, 2011, No. 1601/1059, refused to provide information to the interim manager, indicating that the interim manager was not included in the list of persons listed in Article 26 of the Federal Law “On Banks and Banking Activity”, which the bank has the right to provide the requested information.
By virtue of paragraphs 1, 2 of Article 66 of the Law on Insolvency (Bankruptcy), the interim manager is entitled, among other things, to receive any information and documents relating to the activities of the debtor. Information about the debtor, his property, including property rights, and obligations requested by the temporary manager from individuals, legal entities, state bodies, local governments, are provided by these persons and bodies to the temporary manager within seven days from the date of receipt request of an arbitration manager without charging a fee.
From the content of paragraph 2 of Article 67 of the Law on Insolvency (Bankruptcy) it follows that the temporary manager is obliged to submit to the arbitration court a report on his activities, to which he attaches a conclusion on the financial condition of the debtor; substantiation of the possibility or impossibility of restoring the debtor's solvency, the expediency of introducing subsequent procedures applied in the bankruptcy case.
The right of an interim manager to receive the necessary information regarding the debtor is granted by the norms of a special law - the Federal Law “On Insolvency (Bankruptcy)” ...”
Volga region
Decree of the Federal Antimonopoly Service of the Volga District of August 19, 2010 in case N A65-26944 / 2009
“... As is seen from the case file, by the ruling of the Arbitration Court of the Republic of Tatarstan dated 03.08.2009 in case N A65-8494 / 2009, a monitoring procedure was introduced in respect of Unitech-Service CJSC, Mikhailov V.E. was appointed interim manager.
Interim manager Mikhailov V.E. a request was sent to the respondent to provide information on the settlement account of Unitech-Service CJSC (case sheets 9-15). This information is necessary for the exercise of their rights and obligations, defined by the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” as amended of December 30, 2008 N 296-FZ (hereinafter referred to as the Bankruptcy Law), as well as the Provisional Rules verification by arbitration managers of the presence of signs of fictitious and deliberate bankruptcy, approved by Decree of the Government of the Russian Federation of December 27, 2004 N 855, Rules for conducting financial analysis by arbitration managers, approved by Decree of the Government of the Russian Federation of June 25, 2003 N 367.
However, OJSC "Ak Bars" Bank refused to provide information, referring to Article 26 of the Federal Law "On Banks and Banking Activity".
According to paragraph 2 of clause 2 of Article 66 of the Bankruptcy Law, information about the property belonging to the debtor, requested by the temporary manager from individuals, legal entities in state bodies, is provided by these bodies to the temporary manager within seven days from the date of receipt of the request without charging a fee (the paragraph was introduced by the Federal Law dated December 30, 2008 N 296-FZ).
Taking into account that JSC “Ak Bars” Bank has information about the debtor’s current account, and the Bankruptcy Law provides for the right of an interim manager to receive such information on the basis of a request and without charging a fee, the defendant was obliged to provide the applicant with the requested information.
Under the above circumstances, the courts rightfully satisfied the application of the interim manager, pointing out that Ak Bars Bank OJSC had no grounds for refusing to provide information on the settlement account of Unitech-Service CJSC ... ”
North Caucasian District
Decree of the Federal Antimonopoly Service of the North Caucasus District dated July 25, 2011 in case N A32-26732 / 2010
“... The interim manager applied to the bank with a written request dated 04.08.10 to provide the necessary information within seven days, informing about the introduction of the monitoring procedure in relation to the specified company and his approval as an interim manager. The request contains legal address, as well as the TIN and OGRN of the company, which eliminated doubts about which legal entity the information was requested. The interim manager named the legal grounds - articles 20.3, 66, 129 of the Bankruptcy Law, giving him the right to receive information about the debtor.
Clause 1 of Article 20.3 of the Bankruptcy Law grants the arbitration manager in a bankruptcy case the right to request from individuals, legal entities, state bodies and local governments the necessary information about the debtor, his property, including property rights, and about the obligations of the debtor. This right corresponds to the obligations imposed on the arbitration manager by the same norm and other norms of the Bankruptcy Law, in particular, to analyze the financial condition of the debtor, its financial, economic and investment activity with the subsequent provision of the results of such an analysis to the debtor's creditors and the court considering the bankruptcy case.
In accordance with paragraphs 1 and 2 of Article 66 of the Bankruptcy Law, the interim manager has the right to receive any information and documents relating to the activities of the debtor. Information about the debtor, his property, including property rights, and obligations requested by the temporary manager from individuals, legal entities, state bodies and local governments, are provided by these persons and bodies to the temporary manager within seven days from the date of receiving a request from an arbitration manager without charging a fee.
In accordance with paragraph 3 of Article 20.3 of the Bankruptcy Law, the arbitration manager is obliged to maintain the confidentiality of information protected by federal law (including information constituting an official or commercial secret) and which became known to him in connection with the performance of the duties of an arbitration manager.
Based on the above provisions of the Bankruptcy Law, the courts rightly rejected the bank's arguments about the need to maintain the secrecy of the client's bank account and operations on it. Article 857 of the Civil Code of the Russian Federation guarantees the client of the bank the secrecy of the bank account, however, it does not conflict with the norms of the Bankruptcy Law, since the specified guarantee is valid in full only until the client enters into the sphere of public relations related to his insolvency and inability to meet creditor claims. Moreover, Article 857 of the Code directly provides that relevant information may be provided to state bodies and their officials in cases and in the manner prescribed by law. It is these cases that are provided for by the Bankruptcy Law, which also establishes the procedure for obtaining any information, including information containing banking secrecy, and imposes on the arbitration manager the obligation to preserve it. The arbitration manager in a bankruptcy case shall perform the functions of an official assigned to him by the state.
Under these circumstances, there are no grounds for satisfying the cassation appeal…”
Ural District
Decree of the Federal Antimonopoly Service of the Ural District dated July 21, 2010 N F09-5526 / 10-C1 in case N A50-37519 / 2009
“... As follows from the case file, by the decision of the Arbitration Court of the Perm Territory dated September 24, 2009 in case N A50-25561 / 2009, a bankruptcy procedure was introduced against the company - supervision, Mayorova A.M. was approved as an interim manager.
Due to the lack of documentation and information, the interim manager of letters No. 10 dated September 29, 2009 and No. 10d dated November 2, 2009 requested copies from Ecoprombank financial documents(payment orders, memorial orders) on turnovers (on receipt and write-off of funds) of the company's accounts.
By virtue of paragraph 1, 2 Article. 66 of the Insolvency (Bankruptcy) Law, the interim manager is entitled, among other things, to receive any information and documents relating to the debtor's activities. Information about the debtor, his property, including property rights, and obligations requested by the temporary manager from individuals, legal entities, state bodies, local governments, are provided by these persons and bodies to the temporary manager within seven days from the date of receipt request of an arbitration manager without charging a fee.
Paragraph 1 of Art. 20.3 of the Law on Insolvency (Bankruptcy) also provides that individuals, legal entities, state bodies and local governments submit the information requested by the arbitration manager within seven days from the date of receipt of the request without charging a fee.
The courts established and the case materials confirm that Ecoprombank, in response to the requests of the temporary manager for the provision of copies of financial documents (payment orders, memorial orders) on turnovers (on receipt and debiting of funds) of the company's accounts, by letter dated 09.11.2009 N 08/5652, refused the temporary manager to provide the requested information.
Correctly applying these rules of law, as well as evaluating in the manner prescribed by Art. 65, 67, 68, 71 of the Arbitration Procedure Code of the Russian Federation, the documents available in the case file and the factual circumstances established in the case in their totality, the courts came to a reasonable conclusion that, since the obligation of Ecoprombank to provide the necessary documents is provided for by the current legislation of the Russian Federation, Ecoprombank's refusal to provide the interim manager with information on the provision of copies of financial documents (payment orders, memorial orders) on turnovers (on receipt and debiting of funds) of the company's accounts is illegal.
Under such circumstances, the conclusions of the courts on the existence of grounds for satisfying the claims of the interim manager are justified ...”
10. Providing information regarding the correspondent account of the bank
In accordance with paragraph 1 of Art. 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as credit history bureaus on the grounds and in the manner prescribed by law. Such information can be provided to state bodies and their officials only in cases and in the manner prescribed by law (Clause 2, Article 857 of the Civil Code of the Russian Federation).
According to Art. 860 of the Civil Code of the Russian Federation, rules of Ch. 45 of the Civil Code of the Russian Federation apply to correspondent accounts, correspondent sub-accounts, other bank accounts, unless otherwise provided by law, other legal acts or banking rules established in accordance with them.
When applying these norms in judicial practice, questions arise about the legitimacy of requesting bank customers for information relating to its correspondent account.
10.1. Conclusion from judicial practice: Information about the state of the bank's correspondent account is provided only at the request of the authorized bodies and is closed to the bank's customers.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the North-Western District of January 14, 2010 in case N A13-11052 / 2008
“... From the provisions of Article 26 of the Federal Law of 02.02.1990 N 395-1<*>“On Banks and Banking”, Articles 857 and 860 of the Civil Code of the Russian Federation, it follows that information on the state of correspondent bank accounts is available only at the request of authorized bodies and is not open, including for bank customers ...”
——————————–
<*>In the text of the document, apparently, a typo was made: instead of “from 02.02.1990”, it means “from 02.12.1990”.
Similar jurisprudence:
Moscow District
Decree of the Federal Antimonopoly Service of the Moscow District dated December 14, 2009 N KA-A40 / 13542-09 in case N A40-52918 / 09-140-349
“...According to Art. 26 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking”, Art. Art. 857, 860 of the Civil Code of the Russian Federation, information on the status of correspondent accounts is available only at the request of authorized bodies and is not open, including for bank customers ...”
11. Provision of information constituting bank secrecy when implementing the provisions of the Federal Law “On Counteracting the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism”
In accordance with paragraph 1 of Art. 857 of the Civil Code of the Russian Federation, the bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.
Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as credit history bureaus on the grounds and in the manner prescribed by law. Such information can be provided to state bodies and their officials only in cases and in the manner prescribed by law (Clause 2, Article 857 of the Civil Code of the Russian Federation).
Federal Law No. 115-FZ of 07.08.2001 “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” (hereinafter referred to as Law No. 115-FZ) contains a list of transactions for which a credit institution must send relevant information to the authorized organ.
When applying the above rules in judicial practice, questions arise about the legality of holding credit institutions administratively liable for failure to provide information in relation to a number of transactions they perform.
11.1. Conclusion from judicial practice: A bank that has placed a deposit with the Central Bank of the Russian Federation should not provide information to the authorized bodies, even if the transaction amount is equal to or exceeds the amount specified in paragraph 1 of Art. 6 of Law N 115-FZ.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of October 19, 2010 in case N A31-1424 / 2010
“...According to paragraph 1 of Article 6 of Federal Law No. 115-FZ of 07.08.2001 “On Counteracting the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” (hereinafter referred to as Federal Law No. 115-FZ), a transaction with funds or other property is subject to mandatory control if the amount for which it is carried out is equal to or exceeds 600,000 rubles or is equal to or exceeds the amount in foreign currency equivalent to 600,000 rubles, and by its nature this operation belongs to one of the types of operations provided for in clause 2 of the said article, including the receipt or provision of property under a financial lease (leasing) agreement.
Clause 4 of Clause 1 of Article 7 of Federal Law N 115-FZ provides that organizations that carry out transactions with cash or other property are required to document and submit to the authorized body no later than the working day following the day the transaction is made, information on transactions with cash funds or property subject to mandatory control specified in Article 6 of this Federal Law.
At the same time, operations with cash or other property are understood as actions of individuals and legal entities with cash or other property, regardless of the form and method of their implementation, aimed at establishing, changing or terminating the associated civil rights and duties (Article 3 of Federal Law N 115-FZ).
Thus, the information provided for by Article 7 of Federal Law N 115-FZ must be sent to the authorized body by the organization that actually carries out the relevant operation.
1. The Bank guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client. 2. Information constituting bank secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit history bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law. 3. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
Legal advice under Art. 857 of the Civil Code of the Russian Federation
Moreover, it gives out in an original way - Vladimir Zdorovenin in the USA, and Danila Grigoriev in the Russian Federation) And on banking secrets, an agreement was indeed reached between the Swiss Confederation and the Russian Federation on the issuance of information on foreign accounts, but only after ...
- Lawyer's response:
Banking secrecy - the obligation of bank employees in the interests of customers not to disclose information about the status of their accounts and transactions carried out by them. Civil Code: Article 857. Banking secrecy 1. The Bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client.2. Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.3. If the bank discloses information constituting bank secrecy, the client whose rights have been violated has the right to demand compensation from the bank for damages. None? Then, as they say, a trifle, not pleasant.
-
Legal basis banking secrecy are prescribed in the Federal Law on banks and banking activities.
-
certainly. Bank secrecy includes information about transactions, accounts and deposits of customers and correspondents
- Lawyer's response:
Material from Dengipedia: “The concept of “bank secrecy” is not directly defined in the legislation of the Russian Federation, but a list of information related to banking secrecy is listed. This list is introduced both by the Civil Code of the Russian Federation and Article 26 of the Federal Law “On Banks and Banking Activities”. Under banking secrecy is commonly understood as a special regime of information received by a bank in the course of its professional activities, or received by other persons who receive this information in the course of checking a bank or other interaction. Banking secrecy arises by law and obliges credit organizations to protect it. "
- Lawyer's response:
For the disclosure of banking secrecy, the Bank of Russia, an organization that performs the functions of compulsory deposit insurance, credit, audit and other organizations, an authorized body that takes measures to counter the legalization (laundering) of proceeds from crime, as well as their officials and their employees are liable , including compensation for damages - Art. 26 FE RF "On banks and banking activities". But in practice it will be very difficult to prove it.
-
- Lawyer's response:
Article 857. Banking secrecy 1. The bank guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client.2. Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law.3. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.
- Lawyer's response:
Broadcast confidential information about personal and other data of bank customers to third parties who do not have the authority to receive this information, that is, disclosure of bank secrecy.
- Lawyer's response:
Yes, it is a bank secret. But this does not mean that information about your transaction will remain between you and the bank. If a corresponding request comes from the relevant authorities or bailiffs, and this request in one way or another relates to your operations, the bank will provide comprehensive information. The bank can (even is obliged) to report information about your transaction on the same day without additional requests, if this transaction is suitable and has signs of a suspicious money laundering operation. The presence of bank accounts is not affected. I don’t remember these signs completely by heart, but the law describing them is 115-FZ (it seems)
This information is not a bank secret. the concept of "bank secrecy" means information relating to the state of the bank account and bank deposit of the client of the credit institution, operations on the account, as well as information about the owner of the account.
Owners of bank secrecy - a client or a correspondent (an individual or legal entity) who has entrusted the bank and other credit organization with information that may constitute bank secrecy and their heirs. Owner regarding details...
- Lawyer's response:
Banking secrecy is one of the fundamental aspects of the special relationship that develops between credit institutions and their customers, as well as between credit institutions and persons who wish to receive information. Trade secret - information and documents reflecting the activities of a joint-stock company, enterprise, firm, bank, etc., information about which they have the right not to disclose. The list of information constituting a trade secret is determined by…
- Lawyer's response:
Article 857 of the Civil Code of the Russian Federation1. The Bank guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client. 2. Information constituting bank secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit history bureaus on the grounds and in the manner prescribed by law. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused. Article 26 of the Federal Law “On Banks and Banking Activities” A credit institution, the Bank of Russia guarantees the secrecy of operations, accounts and deposits of its customers and correspondents. All employees of a credit institution are required to keep secret about the operations, accounts and deposits of its customers and correspondents, as well as about other information established by the credit institution, unless this contradicts federal law ... In addition, there are signs illegal actions, under Part. 2 Article. 183 of the Criminal Code of the Russian Federation "Illegal disclosure or use of information constituting a commercial, tax or banking secret, without the consent of their owner by a person to whom it was entrusted or became known through service or work"
Respect the secrecy of bank deposits of clients.
-
- Lawyer's response:
Article 857. Banking secrecy. 1. The Bank guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client. The loan agreement implies the opening of a special account, the movement loan funds there are account transactions. Further - the Federal Law "On Banks and Banking Activities" dated 02.12.1990 N 395-1, Article 26. A credit institution, the Bank of Russia, an organization that performs the functions of compulsory deposit insurance, guarantee secrecy about transactions, about accounts and deposits of its customers and correspondents. All employees of a credit institution are required to keep secret about the operations, accounts and deposits of its customers and correspondents, as well as about other information established by the credit institution, unless this is contrary to federal law.
- Lawyer's response:
Are you sure it exists? We had a case in the city when an entrepreneur was met right on the porch of a bank with 10 million. And so far there is not a rumor or a spirit about him!
She became the second Switzerland that accepts secret bank accounts)
No, the name of the AS used in the bank is not a banking secret. Banking secrecy includes operations on accounts and payments of bank customers.
- Lawyer's response:
It is and how it is. There is no law on collection activities in Russia yet, there are only by-laws. The adoption of the law is only planned for 2012. The most important thing is that in your loan agreement there is no clause on the assignment of rights, you have an agreement only with a bank, the bank enters into agreements with third parties, but you have nothing to do with it - it is designed for the illiteracy of citizens. You can still pick up a lot of laws with a train to "Violation of banking secrecy", for example, violation of the "law on personal data" - it will be cooler ...!
premises intended for conducting confidential negotiations; means and systems of informatization (computer equipment, automated systems various levels and purposes on the basis of computer technology ...
The loan is not subject to statements that constitute banking secrecy ...
- Lawyer's response:
Created by the Swiss Banking Law of 1934, which is governed by well-known swiss banks, the principle of bank secrecy has always been considered one of the main aspects of private banking service. NGOs and governments accuse this principle of being one of the main tools of the shadow economy and organized crime.
Let's wait and see... do you have anything to fear? I'm completely up to the mark. This will not hit ordinary citizens in any way, only now the aunts from the tax office will turn their noses up even more. you have.. :) .. what to pluck? And we don't care... Let...
- Lawyer's response:
In accordance with Law 395-1 of 02.12.1990 "On Banks and Banking Activities" (Article 26) "all employees of a credit institution are required to keep secret about transactions, about accounts and deposits of its customers and correspondents, as well as about other information established by credit institution, unless it is contrary to federal law. Your father-in-law is not an authorized body or other recipient of such information (these include courts, tax, customs authorities, etc.), especially if you did not indicate him as a person who can confirm your reputation or creditworthiness. Therefore, there is an excess of official authority and a violation of banking secrecy. Write a complaint addressed to the head of the bank (branch), send it by mail with acknowledgment of receipt (there are more chances that they will respond). You can also contact the territorial department of the Central Bank in your constituent entity of the Russian Federation (or simply send a copy of the complaint).
Well, what are you talking about of course CAN. he is a ment. which means the state.
In such a mess as in Russia? Don't talk anywhere!
- Lawyer's response:
First in your bank agreement there is most likely a clause on the transfer of information about your movements on accounts to third parties. That is, collection agencies, and here the director is not clear in principle. These are methods of creating for the debtor, an atmosphere of tension and nervousness, a sad but generally accepted practice among bankers and debt agencies. As for your question, the bank does not have the right to inform either the director, or dad, or mom, in general, none of your close and direct people. This information is a bank secret. The movement of accounts is your own business and of the bank, respectively. Plus guarantors. For such actions, you can sue the bank, and if you have unpleasant consequences because of these actions, you will go to court with a claim for compensation for moral and material damage. There was a case when my friend won such a case, the bank told someone to work, they recorded the conversation and went to court with this, due to circumstances that arose, the borrower started having problems at work and he was fired, the bank reimbursed him 150,000 rubles. and he owed them only about 50,000. That's how it happens too.
- Lawyer's response:
Owners of information constituting banking secrecy The Banking Law33 includes all credit institutions, as well as the Bank of Russia and the DIA, in the list of “guarantors” of banking secrecy. The status of the latter subject in relation to banking secrecy is quite curious. On the one hand, an organization that performs the functions of compulsory deposit insurance is not in a contractual relationship with the owners of information, but receives information already classified as bank secrecy, in compliance with the regime for providing such information. In this sense, the status of such an organization is similar to that of a user of bank secrecy. On the other hand, the law secures for the DIA the right not only to use, but also to dispose of information related to banking secrecy - a right that is permissible for information owners. 34 Users of information constituting banking secrecy The credit institution “guarantees” the secrecy, while the duty to keep secrecy is imposed on all employees of the credit institution. If the Banking Law is interpreted literally, the obligation to observe the banking secrecy regime arises only for individuals - employees of a credit institution, and the organization itself may only have an obligation to bear subsidiary liability in case of disclosure of bank secrecy and lack of property of the guilty employee to satisfy the client's requirements. This approach is not consistent with the legal nature of bank secrecy, which arises from legal relations between the bank and the client, and the bank employee is not a party to these relations and acts solely on behalf of the bank. Obviously, the term "guarantees" in this case must be understood differently. Credit institutions must take all measures to prevent their employees from direct unauthorized disclosure of information constituting banking secrecy, or their connivance, which entailed the disclosure of information to third parties. Bank employees and other users of information related to banking secrecy, as well as owners, are required to maintain confidentiality. However, again, questions arise if we consider this duty of employees not in statics, but in dynamics. After the termination of labor relations between the credit institution - the employer and the "employee of the credit institution" - the employee, the latter loses the status of "employee". Consequently, the obligation to maintain banking secrecy also terminates ... Unfortunately, current legislature does not address this issue. The banking law establishes a ban on the disclosure of information obtained as a result of the performance of their professional functions for the Bank of Russia, organizations performing the functions of compulsory deposit insurance, audit organizations and the authorized body implementing measures to combat the legalization (laundering) of income. Among users of information, it is possible to single out subjects whose professional secret is subject to special protection in a separate group. Among such subjects are auditors, notaries of the SZAO, tax authorities, and lawyers. If these persons obtain access to banking secrecy in the course of their professional duties, their rights and obligations in relation to the acquired information are regulated, respectively, by the rules on audit, notarial, tax or lawyer secrecy.
- Lawyer's response:
for a long time. but simple quiet fighters have nothing to fear from this ... there is banking secrecy. but from ordinary people to the special services, everything is still open. That's why they are special services. and gold is not commonplace in America. here France returned all its gold reserves stored in America .. but at the same time did not return its gold from England. draw conclusions
Sergey Dukhnovich
Why does Switzerland extradite big swindlers and bank secrets?
Stanislav Pisarkov
Banking secrecy. What do you think, what is banking secrecy, if money is shaken from the debtor, then they call work, publish his personal data .... Who faced this? What did they do? I would very much like to hear the opinion of bank employees, if there are any.
Artem Abalduev
The concept of banking secrecy in the legislation of the Russian Federation?. Is there a clear definition? To what authorities can such information be provided by law?
Claudia Titova
Bank Secrecy Law. How to punish the bank? Hello. Such situation. By coincidence, I became a hostage of the bank - a very decent loan amount and a delay of 3 months. It is understandable that they call and write letters. BUT! They should only call on the phone numbers specified in the contract. Is not it? Okay, they found the phone of relatives - they call them. The other day they dug up a neighbor’s phone (specifically a third party, I don’t communicate with him) and called him 5 times a day demanding to convey to me the fact of the debt. At the same time, my full name, contact details and the amount of the debt were given to him in full. It doesn't go through any gates. How to punish the bank for such arbitrariness? Interested in the question of how to prove the fact of calls? A printout from the PBX with bank numbers and call times is not a problem. But there is no recording of the conversation. For their part, they can erase it and you can’t prove what issue they called on ...
Vadim Timoshenkov
What are the types of crimes related to bank secrecy?
Alena Zhukova
bank secrecy. Please tell me, is the purchase and sale of traveler's checks in foreign currency a bank secret? if I don't have an account at the bank where the checks were bought and sold??? can the bank provide information on the transactions performed upon request?
Nadezhda Belousova
Question to a loan lawyer: is there bank secrecy on loans? Thank you .. Is it legal from the side bank employee threaten to tell my principal if I don't increase my payout? Monthly I pay 2000 rubles, the last payment is February 7, 2011. total amount payments on loans I get 60% of my salary. Thanks.
Yana Komarova
the concept of "owner of banking secrecy" and its basic rights
Georgy Selikhov
Definition of the concepts of bank secrecy and commercial secrecy of the bank .. and the difference between them
Christina Koroleva
Is there any article for disclosure of bank secrecy?
Oksana Veselova
What is the essence of security for a bank employee?
Grigory Dolgorozhev
and you are for the fact that there is no banking secrecy at all?
Natalia Sokolova
Banking secrets of which countries are so torn apart by Ukraine, pretending to be poor?
Ksenia Novikova
acquiring bank
Georgy Larintsev
Is the information about the name of the applied automated banking system in a particular bank bank secrecy?
Julia Melnikova
Is the disclosure of bank secrecy the transfer of credit data by a bank to a collection company???
Polina Kuzmina
Classify the technical means of protecting banking secrecy
Ksenia Dorofeeva
Does the bank have the right to report debt on a loan to my relatives? But what about the non-disclosure of bank secrecy???
Valery Botashev
when did banking secrecy come about, and what is its history?
Pavel Nozdrunkov
FROM today the concept of banking secrecy is not, it will help in the fight against corruption or hit ordinary citizens
Evgenia Tarasova
Tell me, is the fact of applying to the bank with an application for a loan a subject of banking/commercial secrecy? The security officer of the bank I applied to saw my last name and called my father-in-law, who turns out to be his friend...now everyone knows about this loan...did he have the right to do so? (in the questionnaire I indicated the name and phone number of my husband, but not my father-in-law)
Daria Alexandrova
bank secrecy. the investigator sent a request for information on the amount of debts of debtors - individuals under loan agreements. asked to send copies of payment documents. Does this violate the provisions on bank secrecy and on the processing of personal data? what are the laws?
Yakov Kotelnikov
Does the bailiff have access to bank secrecy? And to the personal data of the debtor? (contributions to the Pension Fund, place of work)
Denis Balikhin
QUESTION TO LOAN LAWYERS: Please tell me if there is a secret bank loan? Is it legal when an employee is banned
Grigory Tumakov
The concepts of the owner of banking secrecy and the user of banking secrecy.
Arthur Belosheev
What computer programs do tellers work with individuals and legal entities in banks?
Denis Shut
Swiss authorities abolished bank secrecy?. Where is gold now concentrated, only it controls everything banknotes and foreign exchange.