Systems of non-cash transfers without opening an account. 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, by using money that is stored in computers and using 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.”
Crediting funds to an individual's account - without charging a commission.
Conducting transactions using letters of credit (in Russian rubles)
|
Tariff, % of payment amount |
Commission from the payer |
|---|---|
|
Settlements under a letter of credit for real estate purchase and sale transactions (including in the form of equity participation in construction and assignment of rights) | |
|
Settlements under a letter of credit for transactions not related to the purchase and sale of real estate |
1000 rub. + 0.1% of the letter of credit amount, no more than RUB 6,000. |
|
Increasing the amount of the letter of credit |
0.1% of the change amount, but not less than 500 rubles. |
| Changing the terms of the letter of credit (except for increasing the amount of the letter of credit), for each change | |
| Settlements under a letter of credit within the Bank (Bank Vozrozhdenie (PJSC) is the issuing bank and executing bank) in favor of an organization accredited by the Bank with the status of “Transaction Partner”: | |
|
|
Translations
Tariffs for making payments and transfers to individuals in Russian rubles without opening an account
|
Tariff, % of payment amount |
Commission from the payer |
|---|---|
|
1. Payments to organizations with which the bank has concluded agreements on accepting payments |
In accordance with the terms of the agreement |
|
2. For housing and communal services and related services (intercom, security, parking, garbage collection, etc.) and communication services (including telephone, Internet, TV, radio, etc.) |
2.5%, min. 50 rub., max. 1,500 rub. |
|
3. To repay loans from Vozrozhdenie Bank (PJSC), including those issued to a third party |
No commission charged |
| 4. Transfer from an individual’s account of funds, including funds received as a loan from Bank Vozrozhdenie (PJSC) (including from the account of a third party who received funds from the borrower) |
No commission charged |
|
5. Transfers in favor of Bank Vozrozhdenie (PJSC) (payment of commissions, transactions with securities of Bank Vozrozhdenie (PJSC), etc.) |
No commission charged |
|
6. Transfer to another branch of Bank Vozrozhdenie (PJSC) between individuals, in addition to repayment of Bank loans: | |
| No commission charged |
| 1 min. 100 rub., max. 1,500 rub. |
| 1 min. $10 max. $50 |
|
7. Repayment of a loan from an individual (except for individual entrepreneurs) as well as replenishment of an individual’s account: | |
| No commission charged |
| 3 min. 100 rub., max. 2,000 rub. |
|
8. For services of educational institutions, including preschool education |
2.0%, min. 50 rub., max. 1,500 rub. |
|
9. For purchased real estate (except for clause 3) |
0.3%, max. 2,000 rub. |
|
10. Transfer of funds to the account of OJSC AHML |
3.0%, min. 100 rub., max. 2,000 rub. |
|
11. Other payments (except for transit non-cash transfers) |
3.0%, min. 150 rub., max. 3,000 rub. |
|
12. Transfer for charitable purposes (if there is an order for the branch to accept and transfer payments in favor of specific legal entities) |
No commission charged |
|
13. Taxes (including duties) |
No commission charged |
| 14. Transfer of funds from an individual’s account received by the sender in the form of government targeted payments | No commission charged |
|
Behind Additional services provided at the request of the client |
Commission from the payer |
|
15. Preparation of payment and/or settlement documents |
20 rub. for 1 document, incl. commission 16.95 rub., VAT 3.05 rub. |
|
Required documents |
|
|
A complete collection of tariffs for transfers in Russian rubles to recipients of transfers within the territory of the Russian Federation, | |
The traditional forms of settlement relations “bank - retail client” discussed above presuppose the mandatory presence of bank accounts of both participants in the settlements: the payer and the payee. Payments are made within the balance of funds in the payer's account and are credited to the recipient's account after debiting from the payer's account. Even in card payment systems, where the initiator of the payment will be the recipient store and the slip is actually a payment request, the payment itself is carried out sequentially from the payer’s account (the owner of the payment card) with subsequent crediting to the account of the payee (store).
At the same time, in modern conditions, for a number of retail payment systems, the key technology for making payments involves the absence of a bank account for the payer and (or) payee. Unlike conventional payment systems, where the units of accounting and document flow are both a bank account and a payment document, in systems where there is no client account, such an accounting unit is only a payment document. In this case, the payment document contains all the necessary details to uniquely identify the recipient and the payer, as well as to verify the fact of initiation and execution of the payment.
Retail payment systems that do not require a client who is an individual to have a bank account include:
* electronic systems money transfers;
* system of postal transfers through domestic post offices;
* system for collecting utility bills of Sberbank of Russia;
Electronic fund transfers without opening bank accounts. Individuals have the right to make such transfers for transactions not related to their business activities. Transfers can be sent in rubles and foreign currency, in favor of legal entities and individuals, residents and non-residents. At the same time, there are a number of restrictions in accordance with currency legislation Russian Federation. Thus, individuals do not have the right to transfer funds for the following transactions:
* related to the acquisition (alienation) of securities and the provision (receipt) of credit (loan);
* transfers by residents of foreign currency within the territory of the Russian Federation, with the exception of the following operations:
Transfer of foreign currency as a gift to the Russian Federation, a constituent entity of the Russian Federation, a municipal entity;
Gifts of foreign currency to spouse and close relatives;
Transfer of foreign currency by right of inheritance;
Payment in foreign currency for individual banknotes and coins purchased for collecting purposes;
Transfer of foreign currency in your favor;
* for transactions related to the deposit of a reserve amount when carrying out foreign exchange transactions.
Individuals (residents and non-residents) have the right to transfer funds within the territory of the Russian Federation without limiting the transfer amount. If a transfer in rubles or foreign currency is sent outside the Russian Federation, and the transferor is a resident individual, the transfer amount cannot exceed the equivalent of 5 thousand dollars. USA within one business day. A non-resident individual has the right to send transfers from the Russian Federation in rubles or foreign currency without limiting the transfer amount.
Individuals (residents and non-residents) when making a transfer in accordance with Federal Law No. 173-FZ of December 10, 2003 are obliged to:
* disclose the contents of the transaction for the purposes of currency control and the status of the counterparty for the transfer;
* confirm in writing that the transaction being performed complies with the currency legislation of the Russian Federation;
* when making a transfer in foreign currency by an individual resident on the territory of the Russian Federation for an amount exceeding 5 thousand dollars. In the USA, the sender must submit documents confirming the nature of the transaction no later than the date of submission of the application for transfer. Such documents may include donation agreements, purchase and sale agreements of single banknotes, coins, a certificate issued by a notary to the executor of a will, etc. Transfer of funds by an individual is carried out on the basis of his application for transfer without opening a bank account on a standard form. The transfer can be made to the account of an individual or legal entity or in the name of an individual presenting an identity document.
In the first case, the sender of funds in the transfer application indicates the details of the recipient bank, the recipient's full name or name of the recipient (for the recipient of a legal entity), the recipient's TIN (for the recipient of a legal entity and individual entrepreneur), and the recipient's account number. In the case of a transfer in the name of an individual - bearer of an identity document, the sender indicates the details of the recipient's bank, the recipient's full name and other additional information about the recipient (address, details of the identity document, etc.).
When a sender wishes to make a transfer, a bank employee:
* introduces the sender to the procedure and conditions for making transfers to the bank;
* checks the identity document;
* hands over the transfer details form to fill out;
* enters data into the software package used when making transfers, performs currency control actions;
* prints out transfer applications (two copies), cash documents for the amount of the transfer and commission, passes them to the sender for signature, signs the cash documents himself and transfers them to the bank's cash desk;
* after the sender deposits the transfer amount and commission into the bank's cash desk, puts his stamp and signature on copies of transfer applications, gives the sender a copy of the transfer application, the second copy of the transfer application is filed in the accounting documents of the day;
*prints payment order(transfer in rubles) or memorial order (transfer in foreign currency) for transferring funds through the interbank settlement system to the transfer recipient's bank.
The Western Union transfer system is called the “transfer system without opening an account.” This system is international. Transfers are made between individuals without opening bank accounts. After a few minutes, the sent transfer becomes available for receipt by the addressee in any country in the world where there are Western Union customer service points. This system uses the latest electronic technologies and its unique worldwide computer network, which allows for fast payments of money transfers in more than 200 countries around the world.
The issuance or acceptance of transfers is carried out only with physical presence at one of the service points. Western Union does not provide the ability to send or receive transfers through various remote systems. The maximum that the system can provide for an additional fee is to notify the payee by phone, fax or by email about the receipt of a transfer to his address, as well as deliver money through mail and other intermediaries.
To send a transfer, an individual comes to the nearest of the 250 thousand Western Union customer service points and fills out a paper form indicating all the details of the location and identification of the payment recipient. The point operator generates an electronic image of the transfer using a remote terminal of the system and transmits it to the system server. The server generates a unique transfer number, which is the main and simplest identifier of this transfer when it is made and received. The form indicating the transfer number and marking the customer service point is returned to the client.
To receive a transfer, the recipient comes to the nearest Western Union customer service point and fills out a standard paper form, where he indicates the transfer details known to him. The operator of the service point contacts the system server through a remote terminal of the system and gives a request to search for a transfer. The found transfer is marked on the Western Union server as paid, and the operator gives cash to the recipient.
The Western Union system carries out settlements without bank accounts of the payer and recipient. Its representatives for clients are banks. Payments are made through interbank correspondent accounts. When a bank registers as a Western Union partner, the system transfers special software to the bank. With its help, a bank employee has constantly updated conditions and geography of Western Union transfers, contacts the system to generate and send an outgoing transfer or to pay out an incoming transfer. Each system service point connects to the system server in short sessions.
Between Western Union offices in different countries, information exchange occurs through dedicated channels. Servers at Western Union offices in various countries are connected to a server at Western Union's central office in the United States. Information on a specific transfer is reported to the central office and from there to the recipient country. The sizes of outgoing and incoming transfers for each specific country where the Western Union system operates may not necessarily be the same. Therefore, the central office carries out daily settlements between its country divisions on a balance basis through interbank channels.
Use of high-performance servers, good software and dedicated communication lines with good throughput allows you to make transfers in the Western Union system almost in real time.
Savings Bank of Russia offers its clients such a service as urgent money transfers “Blitz” in rubles throughout Russia. The technology for providing this service is as follows: the amount transferred urgently is deposited and paid without opening an account in the structural divisions of Sberbank of Russia. The speed of funds transfer is one hour from the moment the transfer application is received. To send a transfer, you must present the sender's passport and provide the recipient's last name, first name, patronymic and passport details. To receive a transfer, the recipient must present a passport and transfer control number.
Non-cash services to individuals when carrying out monetary transactions for them are traditionally provided by the post offices of the Federal State Public Institution “Russian Post”. The post office accounts for about 60% of all transfers within the country, and in the market international transfers- about 2%.
When making postal transfers by Russian mail, the payer fills out an application for transfer at the post office and deposits the required amount of cash. The payment document is transmitted via postal communication channels to the postal office of the payee, where he is issued cash. If for a particular post office the amount of transfers to be transferred and issued is equal, then the cash is not collected from the post office, but is issued to another client. Replenishment of the post office or delivery of surplus is carried out from the regular bank account of the post office.
Money transfers through Russian mail are essentially similar to money transfers through the Western Union system. The difference between them is purely technological. The Western Union system is more susceptible to innovation, as a result of which it carries out transfers for the client faster and cheaper.
At the same time, Russian Post is looking for more advanced technical solutions for servicing retail customers. At the end of 2003, the post office introduced the electronic technology of the Cyber Money money transfer system, which made it possible to reduce the maximum processing time for postal transfers to 72 hours.
In modern conditions, the postal and banking business has great development prospects. Commercial banks, within the framework of a regular license, began to actively enter into agreements with the FSPU Russian Post for the joint promotion of postal banking services in the financial market. The advantages of cooperation between banks and the post office are obvious. Russian Post has an extensive network of post offices, the number of which exceeds 40 thousand; the existing postal coverage area of the country is 99%. No bank, including Sberbank of Russia, has such an infrastructure for providing financial services to individuals.
Cooperation with the post office is of interest primarily to commercial banks with a limited branch network, which strive to offer their products to the widest possible range of clients. According to expert estimates, the banking system is currently inaccessible to almost 60 million Russian citizens. According to the Ministry of Finance, in Russia there are on average four banks or branches per 100 thousand people, and in some regions there are less than three. For comparison: in the USA there are 33 bank branches for the same number of people, in Germany - 58, in Italy - 57. Postal banking services should become in a modern way promoting retail banking products to ensure their accessibility to the general population.
In general, the interaction between a commercial bank and the post office in the provision of banking services can be represented as a relationship between a manufacturer and a seller of a product, where banks are the manufacturer and the post office is the seller. The front-office function, i.e. direct work with the client, is performed by the post office, the back-office function (maintaining operations, accounting, reporting) is performed by the bank.
The most common service offered to a retail client within the framework of banking-postal cooperation is repayment of the loan by the borrower by transfer via mail. In many Russian regions this is the most acceptable way repayment of the loan in the event that the bank that provided the loan does not have a branch in the given territory. This is a common practice for banks issuing consumer loans at retail outlets: the client makes an initial payment at the store's cash desk, and the seller receives the rest from the bank's head office. It is enough for the bank to open only a representative office in the region, which supervises the work of bank managers in stores.
There are three basic models of postal banking activities in the world: a specialized bank (English model); postal financial service performing banking functions (French model); symbiosis of the bank and the post office, when the latter transfers the collected resources to the management of the bank (German model).
For Russia, due to its specifics, the scale of the postal system, and the level of technology of its operations, the first two models are unpromising. The creation of a specialized postal bank will lead to the emergence of another monopoly bank; the post office will lose the incentive to cooperate with a wide range of other banks. In the context of Russian banking legislation, the third model is preferable - the development of a partnership between the post office and commercial banks, where the post office provides a network (infrastructure) for the provision of banking services.
Banks, in turn, due to the high degree of regulation of their activities, take on all the risks associated with this business, and also provide the necessary technologies.
The system for collecting utility payments by Sberbank of Russia can only be partially classified as payment systems without opening an account, since it allows for the absence of a payer’s bank account, but requires the presence of a recipient’s bank account. This is due to the fact that the recipients of utility payments are usually a limited number of companies, while the payers are thousands of individuals. In this case, it is considered inappropriate to complicate the operation of accepting payment by opening an account for the payer, but at the same time, in order to properly account for the huge number of payments received into the accounts of utility companies, it is considered necessary to open a bank account for each of them.
The technology for making utility payments requires certain preparatory work on the part of Sberbank and potential recipients of payments. The purpose of the preparatory work is the ability to unambiguously and quickly recognize the payment recipient on the part of the Sberbank operator and generate an electronic image of the payment document. For this purpose, Sberbank enters into an agreement with the recipient of utility payments, which defines the procedure for file exchange of electronic registers of payment documents and their paper media. Sberbank includes the details of the payee in the directory of its operating program and updates such directories in all its branches.
The recipient of payments delivers payment forms for utility bills to payers, where all the recipient's details are printed. Some recipients of utility payments also type in payer details. In some cases, for one-time fees, the recipient’s details are entered by the payer in his own hand in the blank columns of the forms.
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 a non-cash transfer of 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
─────────────────────────────────────────────────────────────────────────
*(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 mandatory for federal bodies 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.
More on topic 8. Making money transfers on behalf of individuals without opening bank accounts (except for postal transfers):
- 5. Making money transfers on behalf of individuals without opening bank accounts (except for postal transfers)
- The concept of funds transfer Finality, irrevocability and unconditionality of funds transfer
- 1. Banking operation “opening and maintaining bank accounts for individuals and legal entities”: general characteristics
- 3. Opening and maintaining bank accounts for individuals and legal entities
- Chapter 14 Opening and maintaining bank accounts of individuals and legal entities
- 4. Carrying out settlements on behalf of individuals and legal entities, including correspondent banks, on their bank accounts