Особливості правового статусу банків як юридичних осіб

Abstract

The article describes the peculiarities of banks’ legal personality and considers approaches to the universal and special legal capacity of banks as legal entities. It also argues the expediency of using the dynamic theory for determining banks’ legal capacity and the application of special legal ability of banks. The analysis provided in the article is based on the approach according to which the legal ability of legal entities that in the future must obtain permission (permit, license, registration or authorization) for the right to conduct certain types of activities arises in two stages. First, a legal entity receives a minimum universal civil legal ability from the moment of its state registration to the extent necessary for its functioning as a legal entity. The second stage is obtaining a banking license by a bank, which is actually obtaining a special legal capacity. The article analyses all banks’ services (banking services, other financial services, as well as non-financial services provided by the banks), the provision of which requires a special legal capacity. It is argued that special legal ability of the bank provides for the ability to have rights and bear responsibilities necessary for the provision of banking services. A banking service on raising funds and refundable investment metals, in contrast to such raising by other financial institutions, should be considered raising to a bank account. Banking services on opening bank accounts provides for a unique feature of banks - their systemic technological nature to ensure monetary settlements between banks and bank clients. It is suggested to introduce in the legislation the provision that not only the opening of bank accounts should be considered a banking service, but also the provision of settlements between parties which have bank accounts. It is argued that the bank is a unique universal financial institution not so much because of the list of services itself, most of which can be provided by other financial institutions, but because it can provide these services in combination with other services (in complex way). It is indicated that the peculiarity of the legal capacity of the bank as a legal entity lies in introducing a two-tier governance system only with a collegial executive body and tighter requirements in regard to the quality of academic and professional background of members of such governing bodies.