Law/Administrative and financial law

Doctor of Science (д.ю.н.), full professor Frolova E.E.

People’s Friendship University of Russia, Russian Federation

Doctor of Philisophy (к.ю.н.), Voykova N.A.

The Russian Presidential Academy of National Economy and Public Administration, Russian Federation

Government performing modern administrative legal mechanisms of overcoming of the crisis in the bank sphere of the Russian Federation

Close connection with the state, in our opinion, is one their characteristics of the mechanism of legal regulation. Implementation of this method happens by means of rules of law, obligatory for all society, which proceed from the state on behalf of its state bodies, in case of application of a "imperative" method of legal regulation. Besides, the mechanism of legal regulation is provided with the forced force of the state, and also possesses a certain content that gives opportunities to argue on it as about the operating impact mechanism on the public relations.

In the Russian legal science the concept "mechanism of legal regulation" is ambiguously interpreted. It should be noted that this concept is legislatively not determined. In determination of concept we will agree with N. I. Matuzov and A.V. Malko's opinion in that part that the concept of the mechanism of legal regulation represents system of the legal means organized consistently, having the purpose streamlining of the public relations and assistance to satisfaction of interests of persons of law.

Learning object of the administrative right are the public relations of managerial nature in the sphere of the organization and implementation by the executive authority of the functions determined by the legislation. The specified functions are performed in case of public administration and local self-government for the purpose of ensuring legal protection of the rights, freedoms and legitimate interests of citizens of the Russian Federation.

Under the concept "regulation mechanism" it is considered, it is reasonable to designate means for implementation of a certain sort of tasks, namely regulation. According to the author, it is necessary to understand set of administrative and legal means by means of which tasks on ensuring public administration and which are provided with the forced force of the state are performed as the mechanism of administrative legal regulation.

Task of administrative legal regulation of banking activity is, first of all, maintenance of banking system stability of the state, and also ensuring stability of the credit organizations; support of banking system stability for the purpose of the prevention of approach of the crisis phenomena. A task of regulation of a bank system is ensuring stability of the credit organizations and the direction of their activities to that course which at this stage corresponds to interests of development of monetary management of the state.

The state bodies performing the mentioned administrative legal regulation of banking activity realize the functions concerning management of a bank system regarding risk minimization, management of a bank system for the purpose of non-admission of bankruptcy of the credit organizations and a bank system in general. The functions applied to the separate credit organizations following: it actions for maintenance of stability of the credit organizations by means of the available tools and reorganization actions concerning the separate credit organizations.

It is obviously possible to formulate concept of anti-recessionary regulation of the credit organizations. In our opinion, it is set of the actions rendered to a bank system in general and to the credit organizations for their support during approach of crisis in the bank sphere by means of application of the state administrative and legal methods of management (regulation).

In 2008 the banking sector of the Russian Federation began to have negative influence of the crisis phenomena of universal nature which were shown in many countries in 2007. This circumstance forces public authorities of Russia (Federal Assembly of Russia, the Government of the Russian Federation and Central Bank of the Russian Federation) to take qualitatively others system "anti-recessionary measures" within public administration in the bank sphere. Thus the Russian authorities, considering universal global nature of the crisis phenomena in a bank industry, shall take into account not only foreign experience of application of "anti-recessionary" measures, but also that the bank sphere in the Russian Federation, as well as other organization-legal institutes of system of market economy, are created a little more 20 years ago. Thereof, the scientific analysis of administrative legal measures of anti-recessionary regulation in the bank sphere purchased the increased scientific and practical value that causes special research of an administrative legal mechanism of anti-recessionary regulation in the bank sphere.

According to the Constitutional principle of separation of the authorities which is the cornerstone of all system of the organization of the government in Russia implementation by public authorities of the functions assigned to them is established independent, within the conferred powers. Despite this rule, we will note that all public authorities, despite their autonomy, are part of one mechanism which is created for implementation of functions of the state, namely economic, political, social functions of the state.

It is represented that achievement of the specified purposes is impossible without coordination of actions of state bodies. We consider reasonable to agree with the point of view of professor Ya. A. Geyvandov who considers that in communication this necessary coordination of bodies actual is the problem of differentiation of powers between Central Bank of the Russian Federation and other public authorities and creations of the conditions providing interaction between them.

As it was noted earlier, in addition to Central Bank of the Russian Federation, regulation of a bank system is performed also by other federal bodies of the government, according to powers with which they are allocated with the Constitution of the Russian Federation. In the analysis of aspects of interaction of federal bodies of the government concerning regulation of a bank system and implementation of policy in the bank sphere, it is necessary to consider the corresponding functions of the President of Russia, the Government of Russia, both chambers of Federal Assembly of Russia and Central Bank of the Russian Federation. Also, special bodies for regulation of the financial market are created. Such body was Russian President's Council for the Financial Market Development No. 1489 "About Russian President's Council for the Financial Market Development of the Russian Federation" is created by the Presidential decree of Russia of October 17, 2008. The specified Council is the advisory body in case of the President of the Russian Federation created for the purpose of enhancement of a state policy in the field of development of the financial market of Russia.

The main objectives of Council are consideration of the questions connected with development of the financial market and ensuring its stability, and also an efficiency evaluation of the measures taken in this area; carrying out at the request of the President of the Russian Federation examinations of drafts of the federal laws concerning development of the financial market and ensuring its stability; representation to the President of the Russian Federation annually report on a condition and development of the financial market; and also preparation of offers to the President of the Russian Federation on protection of the rights of investors and prevention of crises in the financial market, to further development of the financial market and ensuring its stability. The chairman of the board, his deputy, the secretary and members of council are a part of Council.

Interaction of public authorities concerning single state monetary management is performed in the following order: questions are considered previously on joint sitting of the State Duma Committee on the financial market and the State Duma Committee on the budget and taxes. The State Duma Financial Market Committee brings the draft of the resolution of the State Duma on the specified question for consideration of chamber. The State Duma Committee on economic policy and entrepreneurship prepares the conclusion on the specified question which sends to the State Duma Committee on the financial market.

The regulations of the State Duma provided forms of interaction of the State Duma with the federal state bodies which are directly performing a monetary policy. For example, periodically at a meeting of the State Duma "government hour" for answers of the Russian Prime Minister, Chairman of Bank of Russia or other officials to questions of deputies of the State Duma is spent; The State Duma has the right to send parliamentary inquiry to the Russian Prime Minister, the Chairman of Bank of Russia by the questions entering their competence with observance of requirements of St. 17 Federal laws "About the Status of the Member of the Federation Council and the Status of the Deputy of the State Duma of Federal Assembly of Russia", request to the Russian Prime Minister, the Chairman of Bank of Russia have the right to send by the questions entering their competence with observance of the established requirements inquiry and the deputy of the State Duma. The inquiry of the deputy of the State Duma is sent by it independently and doesn't require announcement at a meeting of chamber (Art. 47 of Regulations).

The Federation Council of Federal Assembly of Russia, as well as the State Duma, has serious impact on a condition of the bank sphere of Russia, directly participating in lawmaking process. The procedure of adoption of the federal legal acts governing the relations in the bank sphere provided by the Constitution of Russia shall allow to block signing by the President of Russia of such federal laws which are adopted contrary to public concerns. According to article 114 of the Constitution of the Russian Federation, the Government of the Russian Federation develops and represents to the State Duma the federal budget and provides its execution; submits to the State Duma the performance report of the federal budget; provides carrying out in the Russian Federation single financial, credit and monetary management.

The government of Russia, along with Central Bank of the Russian Federation, according to the legislation, provides carrying out single financial, credit and monetary management; develops and represents to the State Duma the federal budget and provides its execution; submits to the State Duma the performance report of the federal budget; develops and realizes a tax policy; provides enhancement of the budget system; takes measures for regulation of the security market. Also, performs some other administrative legal measures. The bank of Russia and the Government of Russia are obliged to inform each other on the expected actions having nation-wide value to coordinate the policy, to hold regular mutual consultations.

For implementation of the Bank of Russia functions assigned to it participates in development of economic policy of the Government of the Russian Federation. According to Art. 27 of the Federal constitutional law "About the Government of the Russian Federation" bank representatives of Russia have the right to participate in meetings of the Government of Russia according to federal constitutional laws, federal laws or in the order established by the Government of Russia. The Chairman of Bank of Russia or at the request of the Chairman one of his deputies (Art. 21 of the Federal law "About Central Bank of the Russian Federation (Bank of Russia)") participates in meetings of the Government of Russia. The chairman of Bank of Russia or according to its order one of his deputies can also participate in meetings of the State Duma by consideration of the bills concerning questions of economic, financial, credit and bank policy.

On some questions established in the federal legislation, the Bank of Russia before acceptance of a final decision is obliged to inform tentatively the State Duma and the Government of Russia (Art. 33 of the Federal law "About Central Bank of the Russian Federation (Bank of Russia)"). It is about cases of acceptance by Board of directors of Bank of Russia of decisions on release of banknotes and a coin of Bank of Russia of a new sample, about retirement of banknotes and coins of Bank of Russia of an old sample, and also about a case of approval of nominals and samples of new bank notes.

Interaction of Bank of Russia with the Government of Russia is performed in the course of fulfillment of requirements of the federal legislation that means of the federal budget and means of the state off-budget funds are stored in Bank of Russia if other isn't established by federal laws (Art. 23 of the Federal law "About Central Bank of the Russian Federation (Bank of Russia)"). The credit organizations can be attracted for implementation of transactions on provision of budget funds on a returnable basis. Subjects of the Russian Federation, municipalities of the Russian Federation having the right to open accounts in the credit organizations serving calculations for the transactions made with government securities of the subjects of the Russian Federation and municipal securities performing calculations (in case of absence of organizations of Bank of Russia in the corresponding territory or impossibility of accomplishment of these functions by them).

As appears from practice, along with action of conditions of coordination of measures between the Government and Central Bank, the legislator the restrictions applicable to actions of Central Bank are set: loan granting to the Government of Russia for financing of a federal budget deficit; purchase of government securities in case of their primary placement unless it is provided by the federal law on the federal budget.

Central Bank of the Russian Federation has an obligation to perform transactions with means of the federal budget, means of the state off-budget funds, means of budgets of subjects of the Russian Federation and means of local budgets, and also transactions on servicing of a public debt of the Russian Federation and transaction with gold and foreign exchange reserves without collection of a commission fee.

As it was already told, powers and functions of federal bodies of the government in the bank sphere are interconnected therefore their implementation, in our opinion, can't be performed without the debugged and effective interaction. Coordination of activities of Central Bank and federal bodies on behalf of the ministries and departments relating to the executive authority and directly responsible for implementation governmental economic and a monetary policy is performed as well as with the supreme bodies of the government. Treat such public authorities: Ministry of Economic Development of the Russian Federation, Ministry of Finance of the Russian Federation, Federal Tax Service of the Russian Federation, Federal Customs Service of the Russian Federation, Federal antimonopoly service of the Russian Federation.

According to Art. 57 of the Law on Bank of Russia, the Bank of Russia is allocated with the right to request and receive necessary information on a grant basis at federal executive bodies, their territorial authorities, legal entities for the purpose of creation of bank and cash statistics, a paying balance of the Russian Federation, for the analysis of an economic situation. The Ministry of Finance of the Russian Federation as federal body on regulation of finance in the Russian Federation, performs the functions which are closely connected with activities of Central Bank, in particular in the field of currency circulation, a public credit, in the field of market development of securities, a currency control, the taxation system.

According to the Constitution of the Russian Federation and the legislation on Central Bank of the Russian Federation, one of the main functions of Bank of Russia supervision of the credit organizations and maintenance of banking system stability is. For the purpose of implementation of the powers stated above, in case of Central Bank acts Committee of banking supervision in case of Bank of Russia on the fixed basis. Committee the chairman of Committee appointed by the Chairman of Bank of Russia from among board members of Bank of Russia directs. The chairman of Bank of Russia on representation of the chairman of Committee appoints vice-chairmen of Committee, including from among heads of the structural divisions of Bank of Russia which are a part of Committee.

Committee on banking supervision of Bank of Russia unites the structural divisions of Bank of Russia providing accomplishment of its supervising functions. Its competence includes decision making concerning introduction and change of prudential regulations of activities of the credit organizations when for this purpose it isn't required decisions of Board of directors of Central Bank. Also, function of Committee is consideration of drafts of regulations of Central Bank which introduction can influence goal achievement of bank regulation and banking supervision. In addition to the specified functions, Committee on banking supervision performs the regulating and supervising functions, enhances methodology of banking supervision, regulates activities of the credit organizations in the sphere of supervision, performs separately established functions in the field of a currency control and currency exchange control.

Considering and analyzing functions of Committee on banking supervision of Bank of Russia, we consider necessary to note a variety of nature of functions of this Committee and their multitasking. The committee, in case of execution of the obligations, combines a variety of powers. Proceeding from this thesis, the conclusion that, unfortunately, in case of execution of some tasks, priority for the present, other tasks aren't exposed to serious check and execution is represented reasonable. The situation in case of which, in case of approach of a crisis state in the bank sphere, the Committee, first of all, will pay attention of such task as, the analysis of activities of the credit organizations (banking groups) for the purpose of identification of the situations menacing to legitimate interests of their investors and creditors, banking system stability of the Russian Federation is admissible.

Summing up the result, it should be noted that during approach of crisis in the bank sphere application of the state administrative and legal methods of management (regulation) amplifies. Thus legal principles of implementation of administrative legal regulation of anti-recessionary activities of the state for the purpose of law enforcement are revealed. However the growing scales of the world financial market in case of high capital mobility and insufficiently developed system of its regulation comprise danger of emergence of the crisis phenomena.

Especially it should be noted that the crisis phenomena in the bank sphere affect the social sphere of activity of society. It forces the state to perform "anti-recessionary measures" within system approach to providing the rights and legitimate interests. However achievement of this purpose is impossible without coordination of actions of state bodies, in particular, in modern conditions.

Bibliography:

1. Geyvandov Ya.A. The main directions of interaction of federal bodies of the government in the monetary sphere (lawmaking, personnel policy, control) [An electronic resource] / Ya.A. Geyvandov//24.01.2009. – Access mode: http://rfbs .ru/content/view/59/68/

2. Matuzov N. I., A.V's Whitebait. Theory of the state and right / N. I. Matuzov, A.V. Malko. – M.: "Case" of a RANEPA. – 2011. – 528 pages.