An order from an individual to transfer funds. The private legal nature of transferring funds on behalf of individuals without opening a bank account for them

Making transfers Money without opening bank accounts, including electronic money (except for postal transfers)

Transfer of funds without opening bank accounts as a banking operation. This type of banking operation is provided for in the Law on Banks (and 9, Part 1, Article 5 of the Law on Banks): “transferring funds without opening bank accounts, including electronic money transfer (except for postal transfers).” The Bank of Russia specified this operation in Regulation No. 383-P.

The question arises: does this operation apply to cash or non-cash payments? In the letter of the Bank of Russia dated January 4, 2003 No. 17-44/1 “On transfers of funds on instructions individuals without opening bank accounts" with reference to paragraph 2 of Article 863 of the Civil Code of the Russian Federation, it is said that the operation is carried out within the framework of the norms of § 2 "Settlements by payment orders" and that the transfer of money on behalf of individuals without opening bank accounts refers to non-cash payments.

Credit organizations transfer funds without opening bank accounts, including using ESP, through:

1) acceptance of cash, orders from the payer - an individual and crediting of funds to the bank account of the recipient of funds;

2) acceptance of cash, orders from the payer - an individual and issuance of cash to the recipient of funds - an individual;

3) acceptance of cash, orders from the payer - an individual and increase in the balance of the recipient's e-money;

4) reducing the payer’s e-money balance and crediting funds to the recipient’s bank account;

5) reducing the balance of the payer’s e-money and issuing cash to the recipient of the funds - an individual;

6) reducing the balance of the payer’s EDS and increasing the balance of the recipient’s EDS.

Translation EMF without opening a bank account and agreement.

1. According to Art. 3 of the Law on payment system EMF transfer without opening a bank account is carried out by EMF transfer operators. Such in accordance with Art. 12 of the Law on the Payment System there may be credit organizations.

2. An agreement on the use of ESP (Part 1, Article 9 of the Payment System Law) must be concluded between the money transfer operator (credit institution) and the client.

3. As for credit institutions, operators for the transfer of funds, including electronic money, can be banks, PH COs and payment non-profit organizations.

4. Transfer of funds without opening a bank account, including electronic money transfer, must be provided for by a banking license.

Remote banking services. Payment cards (bank cards)

Remote banking services using the "Bank-Client" system

Remote banking services (RBS) for bank clients are available in two options. Firstly, through the use of money that is recorded in computers and is used computer networks to transfer money. Secondly, using bank cards, which create access to bank accounts.

EMF calculations are becoming popular in Russia, and with the development information technologies The Internet is increasingly being used. In this regard, the “Client-Bank” system has become widespread, aimed at remotely servicing clients under a bank account agreement, the possibility of using which is most often prescribed in an additional agreement to the bank account agreement, and less often - in the agreement itself.

Internet banking is a method of remote banking services (RBS) to clients, carried out by credit institutions on the Internet (including through WEB site(s) on the Internet) and including information and operational interaction with them.

Laws still largely bypass most civil relations in this area, but something is already being done in this direction, including in connection with the creation of a national payment system. Although today there is still no detailed regulation of the relationship between the client and the bank in connection with the conclusion of an agreement on the use of the Client-Bank system. Basic regulation of civil law relations is carried out by the norms of Chapter. 45 of the Civil Code of the Russian Federation “Bank Account Agreement”, as well as the Federal Law of January 10, 2002 No. 1-FZ “On Electronic Digital Signature”. As for the banking operation itself, it is regulated by Bank of Russia Regulation No. 383-P.

To a greater extent, these issues have received a legislative solution in relation to the use of payment cards, in connection with recent additions that were made to the Law on the Payment System on May 5, 2014. We will consider this issue further in a special subsection of the textbook.

Cm.: Chkhutiashvili L.V. Remote banking services: problems and prospects of legal regulation // Russian Justice. 2013. No. 1. pp. 21–23.
See: letter of the Bank of Russia dated March 31, 2008 No. 36-T “On Recommendations for organizing the management of risks arising when credit institutions carry out transactions using Internet banking systems.”

Rules

carrying out transfer operations Money

without opening a bank account on behalf of individuals

1. General Provisions

1.1. JSC JSCB Stella-Bank (hereinafter referred to as the Bank) carries out money transfers on behalf of individuals (except individual entrepreneurs) without opening bank accounts (hereinafter referred to as transfers) in accordance with legislation of the Russian Federation , regulations Bank of Russia and the rules for the implementation of JSC JSCB Stella-Bank transfers of funds from individuals from Russian Federation and to the Russian Federation without opening a bank account (hereinafter referred to as the Rules).

1.2. The Bank sends the following types of transfers on behalf of individuals in the currency of the Russian Federation and foreign currency without opening the sender's bank account:

1.2.1. Transfers in the currency of the Russian Federation:

a) within the territory of the Russian Federation - on behalf of a resident to a resident without restrictions on the amount and purposes of the transfer (with the exception of transfers through money transfers).

b) outside the Russian Federation - on behalf of a resident through one authorized bank (branch of an authorized bank) within one business day in an amount not exceeding the equivalent of 5,000 US dollars.

c) outside the Russian Federation - on behalf of non-resident without restrictions on the amount and purpose of the transfer (except for transfers through money transfers).

1.2.2. Transfers in foreign currency:

- transfer on behalf of a resident to his name/account opened in another branch of the Bank/another authorized bank (transfer of own funds);

Transfer on behalf of a resident in favor of residents:

a) on the territory of the Russian Federation - to spouses or close relatives as a gift;

b) outside the Russian Federation through one authorized bank (branch of an authorized bank) during one business day in an amount not exceeding the equivalent of 5,000 US dollars;

Transfer on behalf of a non-resident in favor of a non-resident without restrictions on the amount and purpose of the transfer within the territory of the Russian Federation and outside the Russian Federation. (except for transfers through money transfer systems)

1.3. For carrying out transactions for sending/paying transfers, as well as for changing conditions, canceling and returning transfers, the Bank charges a commission in accordance with current Tariffs commission for the provision of services to individuals or in accordance with the tariffs of money transfer systems.

1.4. Sending/payment of transfers is carried out by internal structural divisions of the Bank. Information with a list of services provided by specific internal structural divisions of the Bank is posted on the Bank's website: www. stella-bank. ru. Individual senders for all questions related to a specific transfer should contact the additional office/operational office/regional operational office/branch through which the transfer was sent.

1.5. Transfers cannot be related to implementation by individuals entrepreneurial activity.

2. Conditions and procedure for making transfers

2.1. The Bank carries out sending/payment of transfers from individuals upon personal application to the Bank by an individual - the sender (representative of the sender) of the transfer and presentation of an identification document. Foreign citizens and stateless persons must additionally present a migration card and a document confirming the right of a foreign citizen or stateless person to stay on the territory of the Russian Federation. A representative of an individual provides a notarized or equivalent power of attorney.

Operations for sending/paying transfers in the currency of the Russian Federation and foreign currency are not carried out according to driver's license.

2.2. In accordance with the legislation of the Russian Federation, identity documents are:

For citizens of the Russian Federation:

Passport of a citizen of the Russian Federation;

A general foreign passport identifying the identity of a citizen of the Russian Federation outside the Russian Federation;

Military identification card or military ID for persons who are serving in military service;

Seaman's passport for citizens working on foreign vessels or on foreign vessels;

Residence permit for stateless persons;

Other identification documents issued by the internal affairs bodies of the Ministry of Internal Affairs of Russia (certificate of release from places of imprisonment for persons released from places of imprisonment; temporary identity card of a citizen of the Russian Federation, issued by the internal affairs body according to the name, etc.) .

For foreign citizens:

A foreign citizen’s passport or other document established by federal law or recognized in accordance with an international treaty of the Russian Federation as an identity document.

For stateless persons:

Residence permit in the Russian Federation (if they permanently reside on the territory of the Russian Federation);

A document issued by a foreign state and recognized in accordance with an international treaty of the Russian Federation as an identification document of a stateless person;

Temporary residence permit;

Resident card;

Other documents provided for by federal laws or recognized in accordance with an international treaty of the Russian Federation as documents identifying a stateless person.

For refugees:

Certificate of consideration of an application for recognition of a person as a refugee, issued by a diplomatic or consular office of the Russian Federation, or an immigration control post, or territorial body federal executive power migration service ;

Refugee certificate.

2.3. A power of attorney issued on the territory of the Russian Federation must contain the signature of the person who certified it, indicating the position, surname, name, patronymic and the seal of the notary or the relevant organization. A power of attorney issued outside the Russian Federation must be legalized at the embassy (consulate) of the Russian Federation abroad or at the embassy (consulate) of a foreign state in the Russian Federation, except in cases where legalization is not required. Powers of attorney drawn up in foreign languages, must be submitted with a translation into Russian language, notarized, either by the embassy (consulate) of the Russian Federation abroad, or by the embassy (consulate) of a foreign state in the Russian Federation.

2.4. To send/pay out a transfer, an individual (representative) fills out an application for sending/paying out a transfer in the form approved by the Bank or by the Rules payment systems indicating all the details necessary for the translation.

If the transfer is made by a representative of an individual, the application also indicates the surname, first name, patronymic of the representative and details of the representative’s identity document, as well as details of the power of attorney.

2.5. Individuals can change the terms of the transfer, cancel or return the transfer by contacting the internal structural unit of the Bank in which they made the transfer. The implementation of these actions is possible if the transfer has not yet been paid to the recipient, if technically possible, subject to the return of the transfer counterparties Bank (if the transfer has already been sent from the Bank), as well as if this does not contradict the requirements of the legislation of the Russian Federation.

The amount of remuneration withheld for sending a transfer is not returned to the individual sender if the terms of the transfer are changed/cancelled/returned (except if the return of the commission is provided for by the Rules of payment systems)

2.6. Individuals are required to reimburse the amount of expenses in full if the Bank incurs additional expenses due to the fault of an individual when sending a transfer to the recipient.

2.7. The Bank confirms the fact of the transfer by issuing to the individual a copy of the application for the transfer, certified in the prescribed manner, or an application from the money transfer system with KNP and, at the request of the sender, a copy of the sent settlement document with the Bank's marks (only after reflecting the corresponding amount according to correspondent accounts Jar).

2.8. When depositing/withdrawing cash for sending/paying a transfer in a currency other than the currency of the transfer, the Bank carries out the conversion at the Bank’s rate established for transactions of individuals with cash on the date of sending/paying the transfer. Payment of part of the transfer received in foreign currency in an amount less than a unit of foreign currency is carried out at the Bank of Russia exchange rate on the date of payment.

3. Rights and obligations of the Bank

3.1. In order to implement exchange control as an agent of currency control, as well as in order to comply with the requirements of the legislation of the Russian Federation in terms of combating the legalization (laundering) of proceeds from crime and the financing of terrorism, the Bank, within its competence, has the right to request and receive from residents and non-residents documents that directly relate to the operation being carried out. All documents must be valid on the day of submission. Documents must be submitted in original or in the form of a duly certified copy.

3.2. The Bank has the right to request translations into Russian of documents executed in full or in any part in foreign language. The translation must be certified in accordance with the procedure established by law.

3.3. The bank returns the original documents to the individuals who provided them. Copies of documents certified by the bank remain in the Bank.

3.4. The bank refuses to carry out a transaction if:

An individual refuses to provide the required documents;

The documents provided by the individual are unreliable;

An individual refuses to pay the Bank a commission for the provision of services;

The information provided by the sender of the transfer indicates that the individual is carrying out entrepreneurial activities.

3.5. The Bank has the right to unilaterally make changes and additions to these Rules and Tariffs for charging commissions for the provision of services to individuals.

3.6. The bank stores transfer documents for at least five years from the date of their execution.

3.7 When making transfers, the Bank provides bank secrecy, safety, timeliness of sending transfers.

4. Rights and obligations of individuals - senders of transfers.

4.1. When making transfers, individuals must be guided by the requirements of the legislation of the Russian Federation, regulations of the Bank of Russia and these Rules.

4.2. Individuals making transfers in foreign currency and in the currency of the Russian Federation are responsible for classifying transfers as transfers not related to business activities.

4.3. Individuals who send transfers are responsible for the completeness and correctness of filling in the details necessary for the Bank to make a transfer.

4.4. By signing an application for sending/payment of a transfer, the Client gives his consent to JSC JSCB Stella-Bank, located at 344022, Rostov-on-Don, st. B. Sadovaya, 188A, for the processing of his personal data provided to the Bank and/or specified in the application (performing any actions with or without the use of automation tools, including collection, recording, systematization, accumulation, storage, clarification, extraction , use, transfer (including cross-border), depersonalization, blocking, deletion, destruction), in accordance with the requirements of the Federal Law - Federal Law “On Personal Data”. The personal data specified by the client is provided for the purpose of making a transfer without opening an account/transfer payments and fulfillment of contractual obligations. The Bank can verify the accuracy of the personal data provided by the client, including using the services of other operators, transfer personal data to other operators (at the Bank’s choice), including for the purpose of mailing (postal, via the Internet, using other means of communication) for information about the Bank's products and services, as well as use information about non-fulfillment and/or improper fulfillment of contractual obligations when considering issues of providing other services and concluding new contracts. Consent is provided from the moment the Client signs the application for sending/payment of a transfer without limitation of validity period. Consent may be revoked by submitting a written application to the Bank in accordance with the legislation of the Russian Federation.

4.5. The claim of an individual - the sender of funds for a service provided (not provided) by the Bank is drawn up in writing in any form and can be transferred to the Bank in person through the Office or sent to the Bank by mail. The Bank's address and contact numbers are posted on the information stand.

The period for consideration by the Bank of the client’s claim is 30 (thirty) calendar days from the date of its

receipts to the Bank. After consideration of the complaint, a letter is sent to the client regarding

results of consideration of the claim.

JSC JSCB Stella-Bank offers individuals a wide range of money transfer services.

· in Russian rubles to accounts opened in our Bank

· in Russian rubles to the accounts of individuals and legal entities on Russian territory

· in Russian rubles and foreign currency to anywhere in the world (via systems: Western Union, Zolotaya Korona, Contact, Blizko Leader, Money Gram, Caspian, Unistream.)

In our bank you can pay for training, public utilities and other types of services.

In accordance with the Family Code of the Russian Federation, close relatives are relatives in a direct ascending and descending line (parents, children, grandparents, grandchildren), as well as full and half (having a common father or mother) brothers and sisters. If a transfer in foreign currency on the territory of the Russian Federation is carried out by a resident/non-resident in favor of a resident - spouse or close relative as a gift, the individual sender submits to the bank a document confirming the appropriate degree of relationship between the individual - sender and the individual - recipient (certificate of marriage, birth certificate, etc.). Considering that, in accordance with the legislation of the Russian Federation, a donation can be made orally, providing the appropriate gift agreement not required.

Establishing a special regime for activities related to the transfer of funds from individuals without opening an account requires the determination of qualifying characteristics that make it possible to distinguish licensed operations from others, but similar to them.

First of all, it is necessary to pay attention to the term “transfer” used in the law - it traditionally denoted an operation as a result of which the funds of one of the participants in the settlements were transferred (moved) through the mediation of a third party (bank) to another person.

There are credit and debit transfers. The first is understood as an operation “for the bank to carry out the payer’s instructions to make a payment by any type of financial assets in another place” * (11). In this operation, the bank participates as a financial intermediary, transferring funds from one settlement participant to another on the basis of an agreement with the initiator of the transfer, which provides for the bank’s obligation to pay a certain amount to a known person in another place.

Applied to modern conditions For non-cash payments, the “other place” criterion is used taking into account the fact that this means not only another locality, but also another account or sub-account within one account. It does not matter whether this account belongs to the payer himself or to a third party, whether this account is in the same bank as the payer’s account, or whether the recipient’s bank is located in the same place as the payer’s bank.

As part of a credit transfer, funds can be transferred: a) by the initiator of payments to the intermediary in cash and credited by the intermediary to the recipient’s bank account; b) by the initiator of payments to the intermediary in non-cash form (transfer from the balance of funds in a bank account) and issued to the recipient by crediting to his account; c) by the initiator of payments to the intermediary in non-cash form and issued to the recipient in cash; d) by the initiator of payments to the intermediary in cash and issued to the recipient in cash.

Transactions related to the acceptance of cash for depositing them into the bank account of the initiator of the transaction in the same bank to which the funds are transferred, as well as cash transactions for the payment initiator to deposit cash into the account of a third party opened in the same bank, are not considered credit transfers. the same bank to which the cash is transferred.

Thus, the qualifying features of the analyzed transaction are: firstly, the order of the transfer initiator to transfer (in one form or another) funds to another person or issue them in another place; secondly, the actions of the intermediary at the expense and in the interests of the payment initiator.

Although traditionally such transactions are explained by the existence of a relationship under a bank account agreement, it is obvious that the parties are sometimes bound by transactions of a different kind. In particular, the transfer can be carried out on behalf of the depositor if the bank deposit agreement provides for such operations.

These operations are possible even in the absence of a continuing relationship under a bank account agreement, simply on the basis of a transfer order. From the point of view of legal qualification, such an agreement, depending on its terms, may have signs of agency agreements, commissions or commissions.

In the legal literature there are different opinions about the legal nature of a credit transfer. So, L.G. Efimova, defending the opinion that a credit transfer of funds is a type of commission, analyzes in some detail other positions that firmly connect the legal nature of a credit transfer with one or more grounds for its occurrence (commission, order, agency, assignment of claim, transfer of debt, novation and etc.)*(12).

It seems that if there is a bank account agreement between the parties, a credit transfer acts as an obligatory legal relationship based on a special settlement transaction * (13) made in pursuance of the bank account agreement (clause 3 of article 159, article 845, 863-866 of the Civil Code of the Russian Federation ). If funds are transferred on behalf of individuals without opening a bank account, then an obligatory legal relationship develops between the parties, which can be based on various types contracts in accordance with Art. 421 of the Civil Code of the Russian Federation, but due to the operation of special norms (Articles 863-866 of the Civil Code of the Russian Federation) it certainly retains its special features (mandatory participation of the bank, settlements under conditions and in a manner consistent with banking rules and business customs applied in banking practice, etc. .d.).

Consequently, the legality of the activities of persons transferring funds on behalf of individuals without opening a bank account for them will depend not on the type of agreement on the basis of which the legal relationship of the transfer arose, but on the essence of the emerging obligation. It is determined by the subject of the obligation. According to Art. 307 of the Civil Code of the Russian Federation, by virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), including paying money, and the creditor has the right to demand that the debtor fulfill his obligation. The totality of the provisions of Art. 128 and 307 of the Civil Code of the Russian Federation gives reason to believe that the subject of the credit transfer obligation is non-cash funds, i.e. rights of obligation (rights of claim). After all, the creditor in an obligation arising from a settlement transaction for a credit transfer without opening a bank account for the person has the right to demand that the debtor transfer funds. In this case, the debtor can freely use the funds received, guaranteeing the specified right of claim of the creditor. Analysis of the norm enshrined in paragraph 2 of Art. 863 of the Civil Code of the Russian Federation, shows that under this transaction, cash transferred to the debtor will certainly lose its proprietary character * (14). Consequently, the subject of a credit transfer without opening a bank account for an individual is always non-cash funds *(15).

The foregoing allows us to come to the conclusion that the characterization of the transaction in question as a credit transfer does not depend on the moment at which the payment (or settlement) between the initiator of the transfer and the recipient is considered to have been made. The place of payment can be determined by agreement between them (Article 316 of the Civil Code of the Russian Federation) without the participation of an intermediary in the calculations, and the choice of place of payment does not affect the nature of the relationship with the intermediary. This characteristic does not depend on the nature of the relationship connecting the payee and the financial intermediary.

Thus, a credit transfer of funds on behalf of an individual without opening a bank account for him covers operations related to the execution of orders of the payer (individual) to pay funds by an intermediary in another place and (or) to a third party, regardless of how they may be the transactions on the basis of which the transfer is made are qualified.

The procedure for carrying out this transaction is regulated by the Civil Code of the Russian Federation, as well as regulations of the Bank of Russia, including Bank of Russia Regulations dated April 1, 2003 N 222-P “On the procedure for making non-cash payments by individuals in the Russian Federation” * (16) and dated 9 October 2002 N 199-P “On the procedure for conducting cash transactions in credit institutions on the territory of the Russian Federation” * (17).

According to paragraph 2 of Art. 863 of the Civil Code of the Russian Federation, the rules of § 2 “Settlements by payment orders” of Chapter 46 of the Civil Code of the Russian Federation apply to relations related to the transfer of funds through a bank by a person who does not have an account in this bank. In paragraph 3 of Art. 863 of the Civil Code of the Russian Federation states that the procedure for making payments by payment orders is regulated by law, as well as the banking rules established in accordance with it (clause 1.2.3 of the Bank of Russia Regulations of April 1, 2003 N 222-P and clause 2.6.1 of the Bank Regulations Russia dated October 9, 2002 N 199-P).

Article 161 of the Civil Code of the Russian Federation states: transactions of legal entities with citizens must be carried out in a simple manner writing except for the cases provided for in Art. 159 of the Civil Code of the Russian Federation. By virtue of clause 1.2.3 of the Bank of Russia Regulations of April 1, 2003 N 222-P, the transfer of funds on behalf of an individual without opening a bank account is carried out when the individual submits a document, the form of which is established by the bank, containing information sufficient to draw up a payment instructions.

So, transactions for the transfer of funds accepted from the payer - an individual, without opening a bank account for him, are carried out by credit institutions in simple written form.

If organizations accept cash from individuals, the procedure for conducting cash transactions in the Russian Federation, approved by decision of the Board of Directors of the Bank of Russia dated September 22, 1993 No. 40*(18), comes into force. According to this procedure, any cash receipts to the organization's cash desk must be recorded in the cash book. All cash in excess of the established limits of the cash balance at the cash desk of the organization is required to be handed over to the bank in the manner and within the time limits agreed upon with the servicing bank.

Thus, the transfer of funds on behalf of an individual without opening a bank account for him is a civil transaction, the subject of which is the acceptance of cash from the payer - an individual and wire transfer funds to the recipient's bank account without opening a bank account for the payer.

Another approach, according to which the qualifying features of such operations are the participation of the bank in them as an intermediary and its subordination to the requirements of banking legislation, seems erroneous, since it indicates as defining characteristics the very appearance of which is determined by the nature of the operation. As a result, the requirements of public legislation are dispensed with by the participants in the turnover with reference to the fact that this or that transaction is not carried out by a bank, and because of this, compliance with any additional requirements is not required (on licensing, on compliance with the requirements of banking supervision, on extending to certain transactions of special rules, etc.).

As an argument refuting our proposed approach, opponents point out that it leads to the extension of public law requirements to transactions that, by their nature, do not require compliance with special rules. For example, our definition of a transfer carried out on behalf of an individual without opening a bank account for him will also cover relationships involving two individuals, in which one of them instructs (on the basis of a commission or mandate agreement) the other to transfer funds to a third party. However, such an objection disappears, since the execution of one-time transactions cannot be qualified as an activity, and, therefore, there is no main feature necessary to define this operation as a banking operation - systematicity. In addition, the intermediary’s performance of these operations must be aimed at making a profit.

So, if the specified qualifying criteria are present, activities related to making transfers on behalf of individuals without opening bank accounts for them should be considered as banking. The legislator's classification of such operations as banking operations is determined by their nature (financial intermediation), the specific risks that arise when they are carried out, and the need to ensure the interests of payers - individuals. Because of this, it is necessary to limit access to the market for such services of entities that are not able to ensure sufficient security for such transactions and do not obey special rules aimed at protecting the interests of clients of financial intermediaries.

L.A. Novoselova,

Doctor of Law sciences, professor

A.E. Sherstobitov,

Doctor of Law sciences, professor

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*(1) For the discussion that unfolded at the meeting organized by the Bank of Russia, see the letter of the Association of Russian Banks to the Central Bank of Russia dated November 1, 2002 No. A-02/1B-563 “On licensing of banking operations,” as well as other documents (Materials of the round table on the prospects for carrying out banking operations by organizations that do not have a license from the Bank of Russia. March 9, 2004, M., 2004. P. 1-3 et seq.).

*(2) Effective as amended by Federal Law No. 17-FZ of December 3, 1996 with subsequent amendments and additions // SZ RF. 1996. N 6. Art. 492; 1998. N 31. Art. 3829; 1999. N 10. Art. 1254; N 28. Art. 3459, 3469, 3477; 2001. N 26. Art. 2586; N 33 (part I). Art. 3424; 2002. N 12. Art. 1093; 2003. N 27 (part I). Art. 2700; N 50. Art. 4855; N 52 (part I). Art. 5033, 5037; 2004. N 27. Art. 2711 (hereinafter referred to as the Law on Banks and Banking Activity).

*(3) For example, in the Law on Banks and Banking Activities, Federal Law of July 10, 2002 N 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)” (SZ RF. 2002. N 28. Art. 2790; 2003. N 2. Art. 157; N 52 (part I). Art. 5029, 5032, 5038; 2004. N 27. Art. 2711; N 31. Art. 3233) (hereinafter referred to as the Law on the Central Bank of the Russian Federation), etc. .

*(4) Efimova L.G. Banking law. M., 1994. pp. 32-34.

*(5) Agarkov M.M. Fundamentals of banking law. The doctrine of securities. M., 1994. P. 50-51.

*(6) According to paragraphs 4 and 5 of Art. 4 and Art. 7 of the Law on the Central Bank of the Russian Federation The Bank of Russia establishes the rules for making settlements and conducting banking operations, and also issues regulations binding on federal authorities state power, state authorities of the constituent entities of the Russian Federation and local governments, all legal entities and individuals on issues within its competence by the Law on the Central Bank of the Russian Federation and other federal laws.

*(7) See: Agarkov M.M. Fundamentals of banking law. P. 50.

*(8) See: Tosunyan G.A., Vikulin A.Yu., Ekmolyan A.M. Banking law of the Russian Federation. General part: Textbook. M., 2002. P. 206.

*(9) See: Legal regulation of banking activities / Ed. E.A. Sukhanov. M., 1997. P. 19.

*(10) See: Agarkov M.M. Fundamentals of banking law. pp. 50-54. In modern literature on banking law, this classification is supported by L.G. Efimova (Efimova L.G. Banking Law, pp. 32-35). O.M. Oleynik classifies banking legal relations according to the nature of banking operations, highlighting the same four types of the latter (Oleinik O.M. Fundamentals of Banking Law: A Course of Lectures. M., 1997. P. 39).

*(11) See: Efimova L.G. Banking transactions: law and practice. M., 2001. P. 359.

*(12) See: Efimova L.G. Banking transactions: law and practice. pp. 367-387.

*(13) Considering that the Civil Code of the Russian Federation contains special regulation of relations both under a bank account agreement and under a credit transfer (Chapter 45 and § 2 of Chapter 46 of the Civil Code of the Russian Federation), the specified settlement transaction cannot be reduced to any of the known contractual structures .

*(14) According to Art. 223 of the Civil Code, from the moment the cash is transferred to the bank, it becomes its owner.

*(15) In this regard, the point of view of L.G. Efimova, who believes that non-cash money can be an object of property rights (Efimova L.G. Legal problems of non-cash money // Economy and Law. 1997. N 2. P. 49), is subject to fair criticism in modern legal literature (see, eg: Novoselova L.A. Problems of civil regulation of settlement relations: Abstract of thesis... Doctor of Legal Sciences. M., 1997. P. 17; Sarbash S.V. Bank account agreement. M., 1999. pp. 30-32).

*(16) Vestn. Bank of Russia. 2003. N 24.

*(17) Ibid. 2002. N 66.

*(18) See: Economics and life. 1993. N 42-43.

According to the norms enshrined in Article 5 of the Federal Law “On Banks and Banking Activities,” credit organizations have the right to carry out money transfers on behalf of individuals without opening bank accounts (with the exception of postal transfers).

An individual deposits cash into the cash desk of a credit institution.

There is an explanation on this matter from one of the departments of the Bank of Russia. In particular, the Department of Payment Systems and Settlements reviewed the requests received regarding the classification of money transfers on behalf of individuals without opening bank accounts as non-cash payments, and provided the following clarification. In his opinion, this operation is carried out in accordance with paragraph 2 of Article 863 of the Civil Code of the Russian Federation within the framework of the norms of paragraph 2 “Settlements by payment orders”. This is, firstly, and secondly, when transferring funds on behalf of individuals without opening bank accounts, credit institutions carry out a number of sequential banking operations, starting with the acceptance of cash from an individual and until they are credited to the recipient’s bank account in a non-cash manner . Therefore, according to the Department of Payment Systems, the transfer of funds on behalf of individuals without opening bank accounts refers to non-cash payments.*(391)

There is an Operational Directive of the Bank of Russia dated November 23, 1998 N 327-T “On transfers of funds on behalf of individuals without opening bank accounts.” It only says that credit organizations (with the exception of non-bank credit organizations - collection organizations) have the right to carry out transactions for transferring funds on behalf of individuals without opening bank accounts. They can do this on the basis of licenses issued by the Bank of Russia, which provide, among the permitted banking operations, for cash services for individuals and/or legal entities. Therefore, this letter recommended that the founders (participants) of a credit institution that has the above license make an appropriate addition to the list of banking operations provided for in its constituent documents.

Therefore, we can conclude that this operation is practically not regulated by regulations of the Bank of Russia.

In practice, the question has arisen as to whether operational cash desks outside the cash desk of a credit organization can accept payments from individuals without opening bank accounts. In response to a request from the ARB, the Legal Department of the Bank of Russia gave the following explanation. * (392) The operating cash desk outside the cash desk makes all payments through the correspondent account of its credit organization (subcorrespondent account of a branch of the credit organization).

Moreover, all operations carried out by such a cash desk are reflected in the daily balance sheet of the credit institution (branch). Taking this into account, the list of operations delegated by a credit institution (branch) to its internal structural divisions, is determined by the credit institution (branch) independently, based on the list of operations enshrined in the license for banking operations, taking into account the restrictions determined by federal laws and regulations of the Bank of Russia. Therefore, the operating cash desk outside the cash desk can receive funds (securities) and documents from a client - an individual, transactions with which are reflected in the accounting records of the credit organization.

As for foreign exchange transactions, a resident individual has the right to transfer from the Russian Federation, without opening a bank account in an authorized bank, foreign currency or the currency of the Russian Federation in an amount not exceeding the equivalent of 5,000 US dollars. It is determined based on the official exchange rates of foreign currencies to the ruble, established by the Bank Russia on the date of the order to the authorized bank to carry out the specified transfer. At the same time, the total amount of transfers by an individual resident from the Russian Federation without opening a bank account, carried out through an authorized bank (branch of an authorized bank) during one business day, should not exceed this amount. * (393)

Transfers without opening a bank account, in accordance with the regulations of the Bank of Russia, are subject to internal control in the credit institution. The Central Bank's Operational Directive No. 179-T dated December 24, 2003 "On strengthening control over transactions involving the transfer of funds without opening accounts and transactions using prepaid financial products" focuses on the fact that such transactions can be carried out by clients of credit institutions for criminal purposes. The Bank of Russia recommended the following to credit institutions carrying out transactions with prepaid financial products, as well as providing services for transferring funds without opening an account. They should strengthen control over these operations by addressing Special attention for operations on regular transfer of funds by individuals without opening a bank account in cases where the amount of such operations individually does not exceed the equivalent of 600,000 rubles.

An order from an individual to transfer funds. The private legal nature of transferring funds on behalf of individuals without opening a bank account for them

Remote banking services. Payment cards (bank cards)

Remote banking services using the "Bank-Client" system

More on topic 8. Making money transfers on behalf of individuals without opening bank accounts (except for postal transfers):