Zh.B. Shubarova, N.S.
Tuyakbayeva
Kazakh National
University after the name Al-Farabi,
the Republic of Kazakhstan
Some questions of legal regulation of
institute of a bank secrecy by the legislation of the Republic of Kazakhstan
At the request for rendering banking services to one
of criteria which attracts most of clients in this or that bank providing not only safety of money, but also safety of
the secret connected with the identity of the owner and the made transactions
of the account is.
For today leader of a rating of the countries where the bank secrecy
remains in the strictest way in any circumstances, there is Liechtenstein. In
Liechtenstein only rare representatives of law enforcement agencies in very
limited cases can get access to information on the owner of the account. On the
second place there are well-known “Zurich gnomes” - bankers of Switzerland.
Kazakhstan, unfortunately, can't brag of the same safety of bank secrecy.
The disclosure of information constituting bank secrecy has always been
one of the most important in the history of banking relationships. Legislation
in most countries clearly defined range of subjects, with access to banking
secrecy; its content (information that fall under this regime); procedure for
the provision and use of such information; as well as responsibility for its
disclosure.
As a whole, this institution is rather complicated and requires a
comprehensive analysis and development of a definition of banking secrecy will
help determine what information may correspond to this concept, which is
certainly a positive impact on banking practices.
The list of information constituting bank secrecy, and the reasons for
its issuance determined by the legislative acts regulating banking activities.
According to Art. 50 of the Law of the Republic of Kazakhstan “On Banks and
Banking Activity in the Republic of Kazakhstan” [1] (hereinafter - the Law on
Banks) Banking secrecy includes information on availability, owners, numbers of
bank accounts of depositors, clients and correspondents bank balances and cash
flow on those accounts and the accounts of the bank, on the operations of the
bank (with the exception of the general conditions of banking operations), as
well as information on the existence, ownership, the nature and value of the
property you are located in safe boxes, boards and premises of the bank. Do not
apply to banking secrecy information about the loans granted by banks in the
process of liquidation.
Paragraph 4 of Article 50 of the Banking Act [1] states that are not
bank secrecy: the obligation to notify the banks of the tax authorities on the
opening of bank accounts of a legal entity or natural person engaged in
entrepreneurial activities without a legal entity; provision of information to
customs authorities on export and (or) import operations of customers for
export and import currency control in accordance with the currency legislation;
Reporting on cash balances in the bank accounts of individuals liquidation
commission of the bank, forcibly liquidated, the organization performing
mandatory deposit insurance, and agent banks to carry out activities related to
the return of depositors' money. Of course, there is a conflict between the
interests of the bank, the customer's bank, as well as law enforcement
agencies.
In our opinion, now Institute of banking secrecy is little studied,
resulting in the presence of contradictions and gaps in the legal regulation of
bank secrecy.
The literature indicates that bank secrecy - is the information about
the bank “money” account of any kind of clients and correspondents, namely
settlement, current, cost, currency, deposit (deposits), intra-account (for
accounting overdue loans, bills and buying etc.) [2, p. 131]. In this
definition contains a very streamlined concept of banking secrecy is not clear
its legal nature, as well as the content itself remains unclear banking secrecy.
On our opinion, the current Law on Banks [1] list of information constituting
bank secrecy, does not account for the entire spectrum of banking operations.
For example, the question remains unclear whether the bank secrecy banks
issuing bank guarantees, issuing banks, bank guarantees and other obligations
for third parties, providing execution in cash transactions with bills, leasing
activity, issue of own securities (except for shares) , factoring, forfeiting
operations, trust operations. It seems that the information about these
operations, the bank is not a bank mystery.
It should be pointed out that the concept of banking secrecy is
inextricably linked to a trade secret. In Kazakhstan legislation trade secrets
provided in the Law of the Republic of Kazakhstan “On private entrepreneurship”
[3]. According to the normative act, the list of information constituting a
trade secret, determined by the head of the enterprise; the company has the
right not to provide information, commercial secrets.
The Civil Code of the Republic of Kazakhstan [4] uses the term
“proprietary and trade secret”. CC RK guarantees their protection in the
illegal use of third parties under certain conditions. Clear definition of
trade secrets in these regulations is given. From our experience, we propose to
consider the totality of trade secrets confidential information with actual or
potential material or goods that are not generally available to third parties
and declared the entrepreneur (natural person) or the head of the company as
such, but within the limits prescribed by law.
Consider the number of concepts institute of banking secrecy.
S.V. Sarbash exploring the banking secrecy came to the following
conclusions. According to him, bank secrecy is a complex institution of civil
law, which is not highly homogeneous in composition. The author believes that
banking secrecy is inherently rather more inclined to inalienable rights. The
laws of its turnover is unlikely. Of course, the information constituting bank
secrecy may be “commercial” value, for example, competitor’s holder of that
right or its counterparties. However, it is of interest to them, not because of
its unknown to others, which is typical of a trade secret, but for other
reasons. For example, the owner of the creditor bank secrecy is interested to
get information about the debtor's financial situation, and in this sense for
business can be extremely important to get this information. However, if any
other person and will have bank secrecy of the debtor, the creditor has not
lost interest in it and the value of this information, it does not decrease,
which apparently happens with this, for example, a variety of commercial
secrets, as a secret process (“know-how”) [5, p. 148-149].
This position S.V. Sarbash was critically evaluated V.V. Vitryansky, who
believes that the concept of “banking secrecy” refers to a multidimensional
legal categories. According to V.V. Vitryansky, within the framework of public
regulation (in particular, in the field of banking regulation and supervision),
the concept of “banking secrecy” (guarantee of bank secrecy, bank secrecy, the
prohibition of disclosure of bank secrecy) is regarded as one of the essential
requirements for banking activities and participants relevant public legal relations:
credit institutions, the Bank of Russia, audit and other organizations that are
parties to the relevant relations. Violations of the above requirements entail
for public authorities and organizations, as well as officers and employees of
the application of rules of administrative law (for example, a review of the
license to conduct banking activities) and even criminal liability. The author
further notes that civil relations developing between the bank and its
customers under contracts of bank deposit and bank account, legal importance is
another aspect of the category “banking secrecy”, namely: the secret bank
accounts and bank deposit, which is inadmissible disclosure by the bank known
to him information about customers, their accounts and deposits held by him and
banking operations. A further aspect of the concept of "banking
secrecy", released by scientists, is that this concept is often designated
themselves information (information) of the Bank's customers, their accounts
and deposits, as well as banking. It is this aspect of the legislator has in
mind when establishes the rule that the information constituting bank secrecy
can only be submitted by customers or their representatives. In this aspect of
banking secrecy is presented as a piece of information protected by law, which
makes it possible (and makes it necessary) to compare it with the specific
object of civil rights as official and commercial secrets. And the fifth aspect
is the meaning of the legal regime of information about clients of the bank,
their bank accounts and deposits, bank operations on them and presentation [6,
p. 290-292].
In our view, the concept of "banking secrecy" should not be
confused with the concepts of “legal regime of bank secrecy”, “guarantee
banking secrecy”, “bank secrecy”, “and prohibition of disclosure of bank
secrecy”. First of all, the meaning of any secret (commercial, service) is the
confidentiality of information, and in this case the information that appears
in the legal relationship to banking services. In our opinion, the content of
banking secrecy is the kind of information that occurs in the legal
relationship to the implementation of banking operations, ie in the legal
relationship between the bank and the customer, the bank in this case acts as a
special subject.
For a more complete study of this issue is necessary to define the
concept of “trade secret”. It should be noted that the legislation of the
Republic of Kazakhstan there is no definition of a trade secret, which, of
course, is not without difficulties. Paragraph 5 of Article 10 of the Civil
Code of the Republic of Kazakhstan [4] states that commercial (entrepreneurial)
secret protected by law. Procedure for determining the information constituting
a trade secret, its means of protection, as well as a list of information that
should not be part of trade secrets, established by the legislation. According
to paragraph 1, Article 126 of the Civil Code of the Republic of Kazakhstan [4]
civil law protects the information constituting official or commercial secret,
in the case when the information has actual or potential commercial value by
virtue of its being unknown to third parties, there is no free access to the
legal basis and the information holder shall take measures to protect its
confidentiality.
The Law of the Republic of Kazakhstan “On Securities Market” [7]
Art. 41 states that trade secrets in the securities market of the following
information (except as provided by paragraph 2 of this article):
1) on the balance and movement of ordinary shares and the Company's
securities convertible into its common shares on personal accounts in the
register of holders of securities and accounting nominee;
2) the existence and ownership of equity securities, other than those
specified in paragraph 1 of this paragraph, the personal accounts in the
register of holders of securities and accounting nominee, on the balance and
movement of equity securities in these accounts. Thus, it becomes obvious that
the civil law does not contain a general concept of trade secrets, which, in
our opinion, it is a significant gap.
Noteworthy approach to the concept of trade secrets, drawn A.B. Omarova,
according to which a trade secret must be understood the law permits the system
of preventive measures taken by the owner of undisclosed commercial
information, aimed at ensuring the confidentiality of this information
(prevention of unauthorized acquisition, use, disclosure), thereby to ensure
the integrity of the exclusive right entrepreneur for commercial information
[8, p. 13]. Different opinion T. Mahmadhonov. He believes that a trade secret -
this information known to a certain group of people associated with a business
that has an economic value and is necessary to protect the property interests
of its owners [9, p. 6-7]. If we look, for example, to the legislation of the
Russian Federation, according to paragraph 1, Article 3 of the Federal Law “On
Commercial Secrets” [10] trade secret - it's confidential information, which
allows the holder under existing or possible circumstances to increase revenue,
to avoid unnecessary costs, maintain its position in the market of goods, works
and services or to obtain other commercial benefit. In the Russian civil
legislation noted that the information constituting a trade secret, - scientific
and technical, technological, industrial, financial, economic, or other
information (including component manufacturing secrets (know-how), which has
actual or potential commercial value by virtue of its being unknown to third
parties to which there is free access to legally and in respect of which the
holder of such information, a regime of trade secrets. So often in the
literature, the authors note that the three requirements must be met to trade
secrets:
1) The information must have actual or potential commercial value by
virtue of its being unknown to third parties;
2) the information constitutes a trade secret, there should be free
access to the legal basis;
3) The information to be considered a trade secret requires that the
owner of the information takes measures to protect its confidentiality [11, p.
234-235].
In our view, a commercial secret - is primarily confidential commercial
information, which is its content.
Lawyers often raises the question: Is subject to protection under the
rules of the Institute of banking secrecy confidential information about the
borrower violates its loan obligations to the bank because the bank has the
right to dispose of at their discretion, unless otherwise provided by the
contract with the borrower. So, S. Danilenko of the opinion that this
information is subject to both bank secrecy as a violation of the obligations
will certainly be customer information. The author writes that in this case is
not important nature of the action (or inaction) that makes the client, the
information itself is important.
We agree with S. Danilenko, since the content of banking secrecy is
included, in our opinion, any information on all bank transactions, which
carries the bank on behalf of a client. In general, it should be noted that the
civil legislation of the Republic of Kazakhstan and science in general, it is
important to develop the concept of “banking secrecy” because in the form in
which it is stipulated in the Law on Banks [1] does not fully meet the problem
of resolving these legal .
Therefore, in our view, banking secrecy - is the intangible benefit, the
object of civil rights; is information of a confidential nature, arising and
resulting in the process of the Bank's business activities in the interests of
his client, and is also valuable because of its unknown to third parties. On
this basis, we can assume that by the legal nature banking secrecy is nothing
else, as a kind of trade secrets.
The list of used literature:
1. The Law of
the Republic of Kazakhstan dated August 31, 1995 ¹ 2444 “On Banks and Banking
Activity in the Republic of Kazakhstan”.
2. Danilenko
S., Some problems of legal regulation of banking secrecy object // Economy and
law. - 2007. - ¹10. - p. 131.
3. The Law of
the Republic of Kazakhstan dated January 31, 2006 ¹ 124-III “On private
entrepreneurship”.
4. Civil Code
of the Republic of Kazakhstan (General Part) of 27 December 1994.
5. Sarbash
S.V. Account Agreement: issues of doctrine and jurisprudence. - M.: Statute,
1999. - 272 p.
6. Vitryansky
V.V. Bank deposit contract, bank account and online banking. - M.: Statute,
2006. - 556 p.
7. The Law of
the Republic of Kazakhstan dated July 2, 2003 ¹ 461-II “On the Securities
Market”.
8. Omarova
A.B. Civil legal problems Institute of trade secrets in the Republic of
Kazakhstan: dissertation of the candidate of legal sciences. - Almaty, 2002. - 29 p.
9.
Mahmadhonov T. Problems of legal provision of trade secrets in the legislation
of the Republic of Tajikistan: the dissertation author's master of laws other sciences
Dushanbe, 2008. - 24 p.
10. Federal
Law of the Russian Federation of 29 July 2004 ¹ 98-FZ “On Commercial Secrets”.
11. Civil
law: the textbook. 3rd ed., Rev. and add. / Ed. Sergeev A.P., Tolstoy Y.K. - M
.: SP Rozhnikov L.V., 2001. - T. 3 - 632 p.