The concept of "banking law" began to sound not so long ago, only about 20 years ago, which is associated with the development of the banking system in Russia after the adoption of the relevant law. Banking legislation identifies law in this industry as a key concept, and in order to understand the principle of the system, it is necessary to understand the essence of banking law.
The concept of banking law (subject, method, sources) as a complex concept gained the opportunity to develop thanks to the founding of a large number of banks, both state and commercial, as well as the creation of conditions for their development and prosperity. The creation by banks of favorable conditions for attracting the population made possible the further development of the banking system.
The concept of "banking law"
The concept is based on the relationships that arise between the participants. banking system in the process of its formation and development, including interaction with other state bodies and third-party organizations.
The theory of banking law (sources on this subject) describes the law as a complex concept that combines both civil law and its norms, and financial legal norms. Before banking law was separated into a separate industry, it belonged to financial law. However, further, due to its specificity and large-scale development of the country's economy, the need arose to separate banking activities.
The norms of these relations are designed to determine the framework for interactions between participants in the banking system.
Subject of the concept
If the concept of banking law is associated with relations in the banking sector, then the subject of these relations are directly those actions that are carried out in the system, that is, financial transactions.
Principles of Banking Law
Like any industry banking activities business has a number of principles by which their activities are carried out. The concept and sources of banking law are related to principles such as inviolability of property rights, promotion of competition in the banking sector, the development of free economic activity, the principle of protection of property in all its forms, as well as the possibility of protecting one’s interests in court for violation of one’s rights.
Sources of banking law - a concept whose types make it possible to strictly observe the principles in the field of banking.
Among the principles of banking law, we can separately distinguish the principle of independence of banking activities from government bodies. This independence is manifested in all its spheres: financial, property, budget, personnel and functional.
The concept of the sources of banking law
Banking law should be expressed in material form, which is reflected in the form of relevant documents. Sources of banking law are regulations.
The system, the source of which is a normative legal act, is of Romano-Germanic origin. In the process of its development, the system also received its own characteristics, due to the development of the Russian market economy.
Norms in the field of banking law are spelled out in the Constitution of the Russian Federation. Other issues related to the organization of the banking system are controlled by federal laws, and not by regulatory documents of banking entities.
The concept of "system of sources of banking law" includes the following regulatory documents, in addition to the Constitution of the Russian Federation: federal laws, international legal norms, court decisions in the field of banking law, internal documentation of banks, agreements, and also documentation of credit organizations.
In some sources, you can also find information that, in addition to regulatory documents, banking legal thinking is also referred to the sources of banking law. This allows us to predict the further development of banking sectors, evaluate the effectiveness of legal norms and determine the needs of the financial and economic market.
Reflection of the principles of banking law in the Constitution of the Russian Federation
The constitutional foundations of law are enshrined in several sections. The document reflects the norms and institutions of banking law that determine the procedure for resolving a number of issues, from the appointment of the head of the National Bank of the Russian Federation to the resolution of the property issue in case of debt.
The Constitution approves the procedure for resolving issues directly related to banking, as well as the procedure for managing funds and resolving contentious issues.
Banking law and its sources in the Constitution of the Russian Federation affect several categories of issues:
a) Matters relating directly to banking.
b) Category of prohibitions in banking law.
c) Level of resolution of legal issues.
Other sources of banking law
There are a number of other documents that reflect the principles of the functioning of the banking system along with the Constitution. Banking law (sources of banking law) includes not only laws, but also so-called by-laws, which are divided into several categories.
The first act on this list are regulations issued by the Bank of Russia. Their content should not be contrary to federal laws, otherwise the truth is established in court.
Normative acts may be in the form of instructions, instructions and provisions.
By-laws are also Presidential Decrees, they are the priority of these documents. The Constitution provides a list of those issues that are within the competence of the President. Decrees can be based on laws, as well as executed without them.
Sources of banking law, the concept, types of banking activities are often the basis for the adoption of Government Decisions, which are the guarantor of a unified policy in the field of finance and banking. After the adoption of a Decree, its official publication follows, as in the case of Presidential Decrees. When published within 10 days after the creation of the Decree or Decree in 7 days, they come into force.
International law
International law is part of the legal system of the Russian Federation and is divided into two categories.
The first of these involves the observance of certain principles and norms by a number of states within the community. This category includes the principles of international legal activity, as well as customary international law with its norms and those principles of legal activity that are accepted in civilized states.
The second category of norms refers to international treaties concluded by the Russian Federation. In the event that the provisions of an international treaty are contrary to the law, then the provisions of international law are taken as a basis.
However, the peculiarity of international legal norms is that there is no clear list of those norms and principles that are international, and therefore there may be misunderstandings in the legislative sphere. However, usually such principles and norms are UN documents (Charter), the Declaration of Human Rights, International Conventions (Geneva, Ottawa).International law has an advantage over the principles of Russian law.
The structure of sources of banking law
The legal framework is a specific system in which various sources are harmoniously combined. The system of sources of banking law presupposes the existence of a number of regulatory documents that have different meanings and are called upon to perform different functions.
All of them are arranged in a certain order, that is, they have a certain structure, which is determined by the level of significance of a document. Thus, the structure of sources of banking law presupposes the supremacy of the Constitution in many areas, including in banking.
The next most important documents are the Federal laws designed to regulate the activities of joint stock companies, limited liability companies, these include codes of the Russian Federation (Criminal, Tax and Civil), laws with regulations on the activities of banks.
The last level in significance in the structure of levels of sources of banking law are internal regulations of banks.
Banking Law Structure
Banking law is a rather voluminous concept consisting of several components.
The following components are distinguished in the structure of law:
- Norms of law are sources of banking law, which are mentioned above. This is a list of documents that determine the procedure for the commission of certain actions.
- The institute of law implies a number of rules provided for the commission of actions in a specific section of banking. For example, we can cite the institution of a bank deposit, account, etc.
- Division into parts of banking law. The versatility of banking law necessitated its division according to several criteria. In parts distinguish between General and Special parts of banking law. Special principles and sources of banking law allow the General Part to include those rules that relate to the regulation of the Special. Based on the name, it can be said that the General Part includes generalized principles of banking activity, which are further specified in the Special Part.
Banking rules, depending on their purpose, can be general and prudential. General contain a number of provisions on the principles of the organization of banking activities, a number of legal norms, organizational points. Prudential contain a number of measures aimed at reducing the risk of bankruptcy. They can be regulatory and protective. In order to regulate banking activities, there is control over the activities of credit organizations, as well as over licensed activities.
To protective standards include material standards and procedural. They are relevant to the relevant sections of the law.
The internal structure of the rule of law
Considering the structure of the rule of law on the other hand, we can say that the structure distinguishes between hypothesis, disposition and sanction.
It is necessary to understand what each of these points represents. Banking law and its sources prescribe certain rules of conduct in the banking sector.
The hypothesis contains a direct indication of the rules of conduct in the banking process, as well as the possibility of implementing such behavior and actions in the event of various situations.
Disposition as the main part in the process of banking activity describes in detail the provisions of the rule of law, the boundaries of acceptable behavior.
A sanction is a series of measures aimed at preventing a situation of violation of the rules of conduct in the banking system.
Description of the structural elements of the rule of law
At first glance, it may seem that hypothesis and disposition are one and the same thing, and in order to refute this, it is necessary to understand these concepts in more detail. The hypothesis involves an indication of those conditions in which certain regulatory documents are applicable.Disposition sets as its task the presentation of the essence of the situation in which one or another document is applicable.
Sources of banking law may contain different information, and depending on the content of the regulatory act, the disposition may be of different types.
There are simple, descriptive, banquet and reference dispositions. A simple disposition aims at an indication of action. A descriptive one should contain a detailed description of an action. For example, in this case, it will be described in detail which actions are considered eligible and which are illegal. The reference disposition refers to another source of banking law. The banquet disposition describes the situation and the applicable regulations in this case.
Each disposition implies a certain sanction, some of them several. Sanction is a criterion for determining the gravity of an offense. Sanctions, as well as disposition, can be definite, relatively definite and alternative. Cumulative sanctions involve several penalties in response to a violation.
Disposition Types
There is also a classification of dispositions into complex and simple. A simple one offers only one solution to a particular issue, a complex one offers several. In addition, a simple disposition often offers a solution to a problematic issue, but does not disclose it in detail.
Complex disposition can be cumulative and alternative.
The presentation of the material can be as open and understandable as possible, and this applies to a simple disposition. In addition, the material may be relatively specific, indefinite and difficult to alternative depending on the degree of disclosure.
