Право / 12.
Предпринимательское и банковское право
Master student 2nd year Sadibekova
A.1,
Candidate of juridical
sciences, associate professor Sairambaeva Zh.1,
Candidate of engineering, associate professor, Pernebekov
S.2
1Al-Pharabi Kazakh
National University, Almaty city,
2M.Auezov South
Kazakhstan State University, Shymkent city,
Republic of Kazakhstan
Improving
the legal status of banks and organizations engaged in certain types of banking
operations in Republic of Kazakhstan
Nowadays
in the period of need to further improve banking activity a tendency of
strengthening the scientific attention to the issue of the legal status of the
subjects of banking activities is being saved.
In
particular, Zhusupov A.D. is of the view that "in order to determine the
subject and method of legal regulation of banking activity it is important to
know the legal status of its members. According to him, in accordance with any
applicable law such members can be divided into two groups:
1)
The National Bank of the Republic of Kazakhstan;
2)
Second-tier banks and institutions performing certain types of banking
transactions (Articles 3 and 5 of the Law of Republic of Kazakhstan "On
Banks and Banking Activity in Republic of Kazakhstan") "[1].
To
our mind, depending on the object and method of legal regulation of subjects of
banking activities should be divided into the following groups:
1)
The National Bank of the Republic of Kazakhstan;
1)
Second-tier banks (other state banks in Kazakhstan, private banks);
2)
organizations engaged in certain types of banking operations.
This
classification is the most clearly defines the list of subjects of banking
activities, depending on the nature of their legal regulation, because, for
example, second-tier banks and institutions performing certain types of banking
operations are different in legal capacity to implement banking activities.
First
of all, the scientific interest falls to the legal status of the National Bank
of Kazakhstan, which operates on the basis of the Constitution, the laws of the
republic and the international treaties (agreements)of the Republic of Kazakhstan.
Despite
the fact that the special status of the National Bank of the Republic of
Kazakhstan is obvious, one of the problems is the lack of normative reflection
of its special role in the state.
In
addition, there should be rules governing activity of the National Bank of
Kazakhstan in conditions of emergency or special state conditions.
One
of the constitutional and legal problems of second-tier banks is the presence
of securing regulatory status of second-tier banks with a special legal status.
Creation
of special subjects of banking activities inevitably involves conflict with the
fundamental constitutional and legal provisions. Thus, the appearance of the Development
Bank of Kazakhstan with special structures are not included in the banking
system, but at the same time performing certain types of banking activities. It
is, indeed, lead to the formation of case law in a completely different legal
system that affects the state of implementation of constitutional and legal
norms, including the well-being of the people of Kazakhstan, which is the only
source of state power.
Another
problem with the constitutional and legal regulation of banks of the second
level is the lack of regulation in the Constitution of the Republic of
Kazakhstan of the most important relationships related to banking activities.
Thus,
under article 61 of the Constitution of the Republic of Kazakhstan the
Parliament has the right to issue laws that regulate the most important public
relations, establish fundamental principles and standards dealing with: 1)
legal capacity of individuals and legal entities, civil freedoms and rights,
obligations and responsibilities of legal entities and individuals; 2)
conditions of ownership and other property rights; 3) foundations of
organization and activity of state bodies and local self-government, state and
military service; 4) taxation, establishment fees and other mandatory payments;
5) The national budget; 6) issues of the judicial system and legal proceedings;
7) education, health and social security; 8) privatization of enterprises and
their property; 9) environmental protection; 10) administrative-territorial
structure of the republic; 11) ensuring defense and security of the state.
The
same article noted that all other relations are regulated by laws.
An
analysis of this list showed that the activity of second-tier banks are not
paid any attention. It can be presumed to relate this gap with a period when
the banking activities didn’t affect the lives of Kazakhstanis and the fate of
the state intensively as it is now.
Thus,
the second-tier banks in Kazakhstan are not only in economic ties with the
state, but also form the inextricable link between the people and the
government, the quality of which depends on the well-being of each person. On
the other hand, public bodies watching this relationship should take care of
the effective coordination of such relations with only one purpose - to ensure
the economic security of the country as well as the protection of citizens from
corporate abuse.
According
to paragraph 3 of Article 1 of the Law of the Republic of Kazakhstan "On
Banks and Banking Activities in the Republic of Kazakhstan" any legal
entity which does not have the official status of the bank can not be called a
"bank" or characterize themselves as engaged in banking activities.
[2]
However,
Article 5 of the Law of the Republic of Kazakhstan "On banks and banking
activity in the Republic of Kazakhstan" defines the organization engaged
in certain types of banking operations as a legal entity that is not a bank,
which is based on the license of the authorized body and (or) the National Bank
of the Republic of Kazakhstan or in accordance with the legislative act of the
Republic of Kazakhstan is entitled to carry out certain types of banking
operations stipulated by this law.
In
our opinion, on the basis of paragraph 3 of Article 1 of the Law of the
Republic of Kazakhstan "On banks and banking activity in the Republic of
Kazakhstan", it can be concluded that, firstly, this item is contrary to
Article 5 of the Act, and, secondly, activities of organizations engaged in
certain types of banking operations, covers part of the banking operations.
Links
to the above problem, there are some solutions to this contradiction:
1)
to make the activities of these organizations illegal and eliminate them,
leaving the banks to expand their system;
2)
to determine that the status of the bank includes the status of an organization,
which received a license to engage in certain types of banking operations.
In
favor of the first proposal there are a lot of facts of unjustified breach of
the rights of clients and creditors of institutions engaged in certain types of
banking operations. [3]
Visually
such unreasonable acts can be traced in Kazakhstan in September 2015, when the
devaluation of national currency is still creating a stir among the population.
Despite the fact that the head of the National Bank of Kazakhstan reported on
the devaluation of the currency by a certain percentage some currency exchange
offices is much overstated its course of buying and selling foreign currency,
thereby earning a lot of money on exchange.
In
this regard there is the need to improve the structure of the subjects of
banking activities in the Law of the Republic of Kazakhstan "On banks and
banking activity in the Republic of Kazakhstan", which is invited to the
following scheme: a generic term will be the term "credit institution"
and kinds - concepts "bank" and "non-bank credit
organization" [1].
This
proposal, in terms of the first solutions for the status of the organization in
question, is quite attractive.
Given
the high importance of banking activities in the financial sector and the need
for further improvement of the legal status of banks we offer primarily to
designate the role and place of banks by fixing their status in the Basic Law -
the Constitution of the Republic of Kazakhstan.
Adding
to the Constitution of the Republic of Kazakhstan more articles on financial
and banking system will strengthen the status of banks in Kazakhstan and will allow to make important legal decisions
and create a kind of foundation for making changes to address the problems in
the implementation of the relevant law.
References
1.
Zhusupov A.D. Constitutional legal regulation of financial and banking activity
in Kazakhstan. - Almaty, 2013.
2.
Law of the Republic of Kazakhstan "On banks and banking activity in the
Republic of Kazakhstan" dated August 31, 1995. №2444 // Bulletin of the
Supreme Council of the Republic of Kazakhstan. - 1995. - №15-16.
3. Abzhanov D.K. State-legal
regulation of banking activities in the Republic of Kazakhstan. - Almaty, 2012