Baydeldinova T.A.
PhD doctoral student
of customs, fiscal and
environmental law
Al - Farabi Kazakh National University
Principles of constructing the compliance system.
The key issue in the construction of the compliance
system in financial institutions is the existence of a contradiction between
the system of formal and informal rules that are formed on a specific financial
market of the Republic of Kazakhstan. The conflict develops under the influence
of the state, which requires not to participate in the shadow economic
processes and not to facilitate their implementation, and, on the other hand,
the interests of the owners of financial organizations, manifested in the realization
of the main goal of entrepreneurial activity-raising profits. Given that the
work in the financial markets involves a number of licensing risks, and at the
same time, it is impossible to build compliance compliance controls that
completely exclude the implementation of compliance risks, this conflict of
interest is resolved by finding a compromise between the level of compliance
risks taken and the costs incurred by the financial institution as a result of
the creation and functioning of the compliance system. Therefore, it is the
owners and the top management of the financial institution that must determine
and fix the level of implementation of the compliance system.
Proceeding from this, the system of distribution of
competence and, accordingly, responsibility for the implementation of the
compliance system in a financial organization is as follows:
• Collegial management bodies (the board of directors) are responsible to
the owners of the financial institution for overall control of the compliance
risk management system, the existence of an compliance policy and its annual
evaluation and review. This requirement is combined with the successful
practice of improving the quality of corporate governance introduced by the US
Sarbanes Oxley law, which presupposes, among other things, the redistribution
of control functions from the sole executive body to collegial bodies, in which
the presence of external and independent members is desirable;
• Executive management bodies are generally responsible for the effective
management of compliance risk. The person performing operational management of
the financial organization-the sole executive body of management (the chairman
of the board, the president) should be responsible for the presence of a constant
function of compliance control;
• The head of the compliance department is responsible for the operative
management of the compliance function, the optimal implementation of compliance
procedures and interaction with other units of the financial organization in
the process of implementing the compliance monitoring function. [1]
Recorded by an internal regulatory document or otherwise
(for example, at the level of informal arrangements between owners and
management of a financial institution), the compliance policy should not be at
variance with specific managerial decisions made in the course of the financial
institution's activities. Often, compliance systems are created in financial
institutions only under the influence of external influence from state
supervisory bodies and managers and owners of financial organizations do not
make informed decisions in the field of protection against compliance risks. As
a result, compliance systems are foreign elements in the structure of financial
organizations, and their activities are not integrated into the business
process and are implemented formally. Internal intergroup conflicts develop
between the compliance unit and business units. The resources allocated to the
creation and operation of the compliance system are being spent in an
inefficient way due to the appearance of additional costs due to unsettled
business processes.
Based on the recommendations of the Basel
Committee on Banking Supervision [2], the compliance system in financial
institutions and, in particular, in banks seems appropriate to build on the
following principles:
A) the principle of responsibility and awareness of the management of a
financial institution. Given the role that management bodies of a financial
institution should play in the process of managing compliance risks, the main
duties of the compliance system are related to identifying compliance-specific
compliance risks and assistance to the executive body in their minimization.
The principle implies the following functions for the compliance departments:
the organization of timely reliable periodic reporting to the collegial
management bodies (the board of directors) to ensure their control over the
effectiveness of compliance risk management. Collegial authorities, in turn,
implement the adoption of compliance procedures, as well as assess the actual
results of implementation of the compliance system; Promptly informing and
advising the management of the financial institution (the person in charge of
the operational management of the financial institution) to ensure on his part
the effectiveness of the implementation of compliance control and, if
necessary, the application of disciplinary measures for improper implementation
of the compliance function.
Compliance monitoring should be carried out in accordance
with the principle of continuity and in all jurisdictions of the presence of
the financial institution due to the fact that the implementation of compliance
risk in one unit will negatively affect the entire financial institution. At
the same time, the compliance system must be periodically inspected and
evaluated by the internal control unit of the financial organization or
external auditor working on the principles of outsourcing. This is necessary to
ensure the confidence of the owners and management of the financial institution
in the reliability of the information obtained from compliance compliance and
the reliability of the compliance risk management system. For this reason, the
implementation of the compliance control function should not be performed by a
subdivision of internal control. From this also follows the second principle of
independence of the compliance system.
B) the principle of independence of the compliance
system. The principle presupposes the assignment of the compliance unit with
independence from the business function of the financial organization and the
provision of the compliance unit with the appropriate resources necessary for
the implementation of its activities, including information. It is also
necessary to pay attention to the following: providing the compliance unit with
a high official status in the structure of the financial organization and its
leader with the necessary administrative resource to ensure overall
coordination of the implementation of compliance and control over personal
conflict of interests within the financial organization;
To increase the level of objectivity of decisions and balance
of interests between the compliance control functions and business, it is
advisable to apply collegial methods for solving disputable situations. Given
the existence of an internal intergroup conflict of interest, significant
compliance risks should be addressed at the level of a collegial body, for
example, the Compliance Committee, which should include representatives of
units interested in resolving the issue;
The remuneration of the compliance unit should
not depend on the financial results of specific transactions or projects, but
be carried out from general funds.
C) the principle of participation of all employees within their competence in
implementing the compliance system. Compliance procedures (AML / CFT) in recent
years, especially in banking, have become integral elements in the
technological chains of almost every financial transaction. Therefore, the
actual participation of the compliance officer in virtually every operation,
both in the customer service area and at the site of the operation, is
fundamentally impossible. Its task is to advise employees and coordinate the
implementation of compliance control procedures, as well as the implementation
of certain procedures that fall within its exclusive competence. For example,
the verification and consolidation of information on transactions subject to
control, before sending them to the Financial Monitoring Committee or assessing
the risk of legalization of specific customers. The principle presupposes the
need for routine maintenance of business processes, the consolidation of the
compliance function in regulatory documents, job descriptions of employees, the
distribution of authority between employees at the level of operational units,
as well as the training function.
In this context, the training function is extremely
important and involves not only advising the management of the financial
institution and coaching staff, but a whole set of activities that involves the
formation of a culture of compliance within the financial institution. It is
necessary to create communication platforms operating in both directions - from
the compliance manager to the employees and back. The goal of training is not
only to inform about the application of specific control compliance procedures,
but also to develop an understanding of the danger of such a phenomenon as the
legalization of criminal proceeds, both for a financial institution, in
particular, and for society as a whole. It is advisable to expand the horizons
of the employees in order that they understand the causal relationship between
the shadow economic processes and the specific procedures of compliance control
and apply (or did not apply) them consciously.
The second important function of the principle of
participation of all employees in the implementation of compliance control
procedures is the level of automation culture. Without the proper level of
automation of compliance control processes (in other, as well as any other
procedures) the level of their implementation will be low and different in
different operating units. This is fraught with significant operational risks,
due to the serious impact of the human factor. [3] Automation of compliance
control procedures, in essence, is the task of analyzing financial data and, like
any other analytical automated system, can function only under the condition of
sufficient data, automating the banking operations of technological gaps in
their automated processing. In other words, an automated compliance compliance
system is a superstructure over an automated banking system and works with the
information it prepares. Thus, it is not enough to acquire a high-quality
automated compliance system. It is necessary that the general level of
automation allows such a system to be applied.
1.
Булыга Роман Петрович.,
Куприянова Людмила Михайловна Управление корпоративными рисками // Экономика.
Бизнес. Банки. - 2015. - №3 (12)..
rimuniver.ru/wp-content/uploads/2015/10/Булыга-и-Куприянова.pdf
2. Basle
Committee on Banking Supervision. (1997). Report of the Central European
Working Group: A Response to the Core Principles for Effective Banking Supervision.
The Committee. (2017).
3.
Лаврищев, А.П., 2006. Формирование и развитие системы внутреннего контроля
кредитных операции в российских банках, PhD thesis, Государственный университет
управления, Москва.