Banking Legislation Research Articles

СПРАВЕДЛИВІСТЬ ЯК ПРИНЦИП БАНКІВСЬКОЇ ДІЯЛЬНОСТІ

Досліджено особливості прояву принципу справедливості в механізмі правового регулювання відносин за участі комерційних банків і клієнтів — споживачів фінансових послуг. Зазначається, що однією з причин падіння довіри населення України до фінансових установ є недостатньо повно опрацьований правовий режим охорони та захисту прав слабкої сторони договірних правовідносин, до категорії яких належать клієнти банків. Це вказує на те, що справедливість наразі ще не набула повноти свого прояву в правовому регулюванні банківської діяльності. Установлено незадовільний стан економічної та правової науки щодо рівня теоретичного обґрунтування справедливості як одного із принципів банківської діяльності.
 Наведено конститутивні ознаки принципу справедливості, серед яких: рівність правових можливостей суб’єктів правовідносин, рівність дії правових вимог, рівність масштабу юридичної оцінки актів поведінки суб’єктів правовідносин.
 Аналіз банківського законодавства України вказує на позитивну динаміку щодо запровадження в ньому системи правових норм, покликаних вирівняти дисбаланс між можливостями комерційних банків та їхніх клієнтів, що є свідченням прояву політичної волі законодавця стосовно поступового втілення принципу справедливості в національне банківське законодавство України.
 Вказується на необхідність проведення в Україні послідовної та довготривалої просвітницької роботи з метою підвищення рівня економіко-правової грамотності населення. Одним із елементів такої роботи має стати популяризація правил ведення правового діалогу клієнтів — споживачів фінансових послуг з комерційними банками чи іншими фінансовими установами. Наголошується на потребі залучення до такої роботи представників економічної та правової науки.
 Підбито підсумки про необхідність проведення спеціальних наукових досліджень щодо подальшого розроблення механізму правового регулювання банківської діяльності через призму дії принципу справедливості.

Legal nature of the requirements of the banking legislation of Ukraine to ensure credit operations of banks

Іintroduction. Despite the fact that a significant number of scientific publications by well-known Ukrainian authors are devoted to the issues of legal regulation of credit obligations, at the same time separate studies of banking legislation requirements on "acceptability of collateral" have not been conducted in Ukrainian civil science in recent years. This, taking into account the gradual alignment of banking legislation of Ukraine with the standards of Basel III, and Directive 2002/47 / EC of the European Parliament and of the Council of 6 June 2002 on financial collateral mechanisms, necessitates such scientific research. The aim of the article. On the basis of the analysis of the legislation of Ukraine, the legislation of the European Union, scientific advances in the sphere of civil law and banking legislation, in the context of the analysis of the banking legislation of Ukraine, it is safe for creditors. In order to achieve this goal: 1. Conduct an analysis of civil and legal species for the protection of crops for the subject of іх possible delivery to “acceptable safety” and vrahuvannya banks when opening a credit card. 2. Significantly "quasi-security", as viewed by the banking legislation in the form of "acceptable security" for credit cards. 3. Zdіysniti analysis of the approaches to the legislation of the EU in the field of protection from credit denominations. Results. The methodological basis of the study is general scientific and special legal methods of scientific knowledge. In particular, the dialectical method, the method of analysis and synthesis, the comparative law method, the functional method, the modeling method, etc. Conclusions. First, the banking legislation does not consider as "acceptable collateral" such types of collateral as penalty, surety, deposit, retention. Secondly, the banking legislation considers as "acceptable collateral" not only those specified in Part 1 of Art. 546 of the Civil Code of Ukraine types of security for performance of obligations (pledge, right of trust ownership, guarantee), and other types of security for performance of obligations provided by law or contract (reserve letter of credit, performing the function of financial guarantee, guarantees of public entities, guarantee payment), but also contractual constructions which do not concern types of maintenance of performance of obligations (repo agreements). Thus, the banking legislation considers collateral in credit operations from the economic point of view, according to which "acceptable collateral" is only such liquid collateral that guarantees the rapid recovery of the property of the creditor bank, which suffered damage due to default or improper performance of the counterparty loan obligation, as well as "quasi-collateral", if such is referred by banking legislation to "acceptable collateral". Third, the existence of rules in the banking legislation on the acceptability of collateral in no way affects the right of banks to use any type of collateral provided by law or contract, if the application of such is possible in credit relations, taking into account the legal nature of the relevant types. software. Fourth, the set of regulations of the National Bank of Ukraine on the acceptability of collateral can be considered as an institution of banking law, which includes as rules of civil law governing the types of collateral, other rules of contract law governing other "quasi-collateral" contractual constructions, as well as public-law special norms of banking legislation, which establish additional regulatory requirements for banks to ensure credit operations and calculate credit risk.

Problems and Prospects for the Development of the UK Banking System in the Process of New Industrialization and Digitalization

The gist of this article boils down to the development of British banking system in the conditions of new industrialization and digitalization. The banking system of Great Britain is characterized by a high degree of concentration and specialization of banking, a well-developed banking infrastructure, and a close connection with the international loan capital market. London is the world's oldest financial center. The English banking system has the world's widest network of overseas branches. The UK banking system is relatively independent from the credit systems of the European Union. Nevertheless, banking legislation is focused on the unification of banking law within the European Community and supervision of banking activities. In the context of the global financial crisis, the UK banking system, as in other countries, has been severely tested. The most important trend in the development of the UK banking system is the blurring of boundaries between certain types of credit institutions. The subject of the research is the UK banking system in the context of new industrialization and digitalization.

Financial Crises and Legislation

Scholars frequently assert that financial legislation in the U.S. is primarily driven by financial crises. This ‘crisis legislation hypothesis’ is often cited as an explanation for various supposed shortcomings of US financial legislation, including that it is ill-conceived and inadequate to the problems it aims to address. Other scholars embrace the hypothesis, but from the perspective that financial crises are the needed impetus to prompt constructive reforms. Despite the prevalence of this hypothesis, however, its threshold assumption—that Congress passes major financial legislation only when financial crises arise—has never been analyzed empirically. This article provides that analysis. We first devise a new system for systematically assessing legislative importance based on the notion of citation indexing, the principal at the heart of algorithms used by modern search engines such as Google. Using a suite of legislative importance metrics, we show that the crisis legislation hypothesis fits strongly for securities laws, but far less so for banking legislation. We conclude, therefore, that reformers would be ill-advised to only push for government interventions in the banking system post-crises, and that those seeking to understand dysfunctions in U.S. bank regulation will need to seek fuller explanations.

TOWARD A NEW COMPARATIVE PUBLIC LAW OF CENTRAL BANK LEGISLATION: Designing Legislative Mandates for Central Bank Private Securities Assets Purchases and Nominal GDP Targeting

Abstract What role could unconventional monetary policy – and particularly unconventional policies like private asset purchases under a quantitative easing or lender of last resort scheme – play in influencing economic growth directly? A wide literature in economics explores the pros and cons of using these policies. However, most studies also point to the uncertain and antagonistic legal basis for such purchases. In this paper, we show how the statutory mandate for nominal GDP targeting could best put in place the legal foundations for such asset purchases. We review the legislative and regulatory bases for private securities purchases made by central banks in a sample of countries. We discuss – if legislators and policymakers wanted to – how they might introduce clearer mandates to make such purchases into their public law. We finally show how legal authorizations for GDP targeting might (and probably should) provide for such authorisations. Our discussion sheds light on the fascinating and almost completely ignored area of public law, namely central bank law.

Иностранные банки в Китае: старт нового этапа

Received 16.10.2020. The article examines the most recent developments in the evolution of the foreign banks in China. Author provides a brief description of the stages of development of foreign banks in the PRC since the start of the Den Xiaopin’s Reform and Development policy till the present time. The change in assets of foreign banks for the last 15 years is analyzed in details. A comparison of assets of foreign banks with the assets of the China banking system is provided in a form of analytical graph. The author’s assessments of the foreign banking sector over the past ten years give grounds to conclude that there was a stagnation in the development of the foreign banks sector during this period. The recent steps of the Chinese authorities to liberalize the foreign banking sector are analyzed in detail. The author examines the Chinese leader’s systematic approach to the banking reforms and comes to the idea that it consists of three components: the change in the political vision and attitudes, the institution reform of the banking regulators and the reform of banking legislation. An assessment of the impact of liberalization on the development prospects of foreign capital banks is also given. Based on an analysis of the overall scale and impact of recent reforms in the foreign banking sector, the author concludes that a new stage in the development of foreign capital banks in China is likely to begin. The main problems and challenges that foreign banks in China will have to face at a new stage of development are also identified and described.

Problems transactions made via a digital platform and ideas for improving the civil and banking legislation of the Russian Federation

Problems transactions made via a digital platform and ideas for improving the civil and banking legislation of the Russian Federation

Особенности оказания электронных банковских услуг по договорам банковского счета и банковского вклада

The article deals with the issues of concluding bank account and bank deposit agreements remotely, the mandatory conditions for such agreements, as well as the issues of providing electronic services in an online format. The analysis of the means of customer identification used by banks in the provision of electronic banking services is carried out. The concept of an electronic document in accordance with the banking legislation of the Republic of Kazakhstan is considered, and a proposal is put forward to improve the current version of the concept of an electronic document provided for by the legislation of the Republic of Kazakhstan on an electronic document and an electronic digital signature.

Developing Judicial Dialogue Between EU Courts: The Role of EU Banking Legislation

In the EU legal system, the relationship between European and National law has always been a fruitful and challenging terrain for discussions and analysis. The expression “judicial dialogue” usually refers to different channels, both formal and informal, that are in place in the interchange between European Courts, including, most importantly, Constitutional Courts, and the Court of Justice of the European Union. While the scholarly debate on judicial dialogue in the EU context is by now quite extensive, new, interesting strands are recently developing in the specific context of EU Banking and Financial Legislation. Going beyond technicalities of EU Banking Law, this paper aims at showing that the high degree of innovation and experimentation of EU Banking Law is a fruitful laboratory for the development of forms of judicial dialogue that go well beyond preliminary reference and that offer food for thoughts also at a broader, political and institutional level.

THE IMPACT OF THE FIRST WORLD WAR ON THE SPANISH MONEY MARKET: NEW EVIDENCE FROM MONEY MARKET AND BANK LENDING INTEREST RATES, 1900–1935

ABSTRACTThis paper provides a new index of money market and bank lending interest rates in Spain for 1900–1935. New archival evidence reveals a structural change in market interest ratesvis-à-visthe official rates charged by theBanco de España(BdE). Before 1914, the BdE rate operated as a ceiling to market rates. The outbreak of the First World War caused market rates to soar and the BdE rate started operating as a floor, as bank liquidity started depending on the BdE. This was accompanied by new banking legislation introduced in 1921, which changed the collateral framework through which the BdE lent to banks. The resulting interest rate index illustrates the persistent impact of financial deglobalisation caused by the outbreak of the War.

Creation of a trusting environment in the financial market as an actual direction of financial and legal policy in the digital economy

This article is devoted to the study of issues related to the formation of a trusting environment in the financial market in the digital economy. The author concludes that the protection of the rights of consumers of financial services, including financial services provided in digital format, requires the formation of a trusting environment in the financial market. This involves a combination of government regulation of authorized entities, including the Central Bank of the Russian Federation, and self-regulation by financial organizations. The development of banking legislation and law enforcement practice testifies to the transformation of the legal personality of the Central Bank of the Russian Federation and the expansion of its authority to issue programmatic legal acts in the field of increasing the availability of financial services in the Russian Federation. This is due to the application of a systematic approach and the proposal to secure at the federal law level the powers of the Bank of Russia to issue program legal acts in the field of financial technologies.

FINANCIAL AND LEGAL MEASURES TO COUNTER THE NEGATIVE CONSEQUENCES OF THE CORONAVIRUS PANDEMIC (CRP) IN THE SYSTEM OF SOCIO-POLITICAL MEASURES OF BUDGETARY POLICY OF STATES: NATIONAL AND INTERNATIONAL ASPECTS

Introduction. The socio-political and legal prerequisites for enhancing the coordinating role of the state, its budgetary policy and financial and legal regulators to counter the negative consequences of the coronavirus infection pandemic (PKI) are considered. International financial organizations (IMF, World Bank, OECD and others), supporting states in the fight against CRP, propose new standards of fiscal and investment policy developed by them on the basis of financial planning and budgeting with the involvement of budgetary funds and public financial reserves for social and economic support of the population from the consequences of CRP. States use these post-CRP international stability standards as part of their fiscal and development strategies. Materials and methods. The report of the UN Department of Global Communications on measures to counter the destruction of economies as a result of COVID-19 and the implementation of the Sustainable Development Goals 2020 was used. The conceptual provisions of the Analytical Summary of the Department of Fiscal Policy of the IMF (April 2020) with recommendations to government agencies on the restoration of economies destroyed by the CRP were considered. The article provides the norms of the Russian budget, tax, banking legislation, adopted in the implementation of the provisions of the Decree of the President of the Russian Federation dated 02.04.2020 No. 239 on measures against CRP. The Federal Law of the Russian Federation of March 18, 2020 No. 52-FZ on budgetary policy for 2020 and for the planning period of 2021 and 2022 was considered in connection with the CRP. Used a document of the Bank of Russia dated 08/10/2020. on measures to limit the consequences of the coronavirus infection pandemic and other acts. Results. The international recommendations of the IMF on supporting the public sector of the economies in the context of countries overcoming the consequences of the CRP through budget loans, guarantees, fiscal risk management, and coordinated fiscal stimulus are considered. A steady tendency on the part of states and international financial organizations (IFIs) to strengthen the budgetary law of states and promote “soft law” international legal regulation of standards for the implementation of the planning, coordinating and supervisory functions of states, which should be strengthened as overcoming the destroyed CRP economies, finance, education, culture, social sphere. Discussion and conclusions. IMF in their reports emphasize that international financial and other cooperation of states in the context of the fight against CRP should move to a new level of trust and mutual assistance. It is shown that the new financial and legal norms in the budgetary, tax, and banking legislation of the Russian Federation in 2020 act as a set of anti-crisis regulation measures in the face of countering the CRP with the involvement of budgetary funds from the National Welfare Fund (NWF) and other sources of budgetary financing under control by the method of treasury support.

Особенности имплементации принципов Базеля III в банковское законодательство Российской Федерации

The Russian Federation has formed the foundation for the full implementation of Basel III recommendations in the Russian banking system. However, this process is not yet complete, due to both subjective and objective reasons. The article analyzes the objective reasons for the postponement of the full implementation of the Basel III principles due to the COVID-19 pandemic. The features of the introduction into Russian practice of procedures and approaches for calculating the indicator and ratio of short-term liquidity, as well as assessing operational risks. On the basis of the analysis carried out, recommendations for improving banking legislation are given.

Совершенствование правовых механизмов регулирования банковских услуг

Настоящая статья посвящена анализу проблем банковского законодательства, регулированию банковских услуг. На основе изучения зарубежного опыта и научно-теоретических взглядов были исследованы пути совершенствования законодательства в области регламентации банковских услуг. По итогам анализа были сделаны соответствующие выводы и разработаны предложения в действующее законодательство.

Banking Frauds: In Relation to PNB Scam

This paper talks about letter of undertaking and banking fraud with reference to PNB Nirav Modi scam. This paper focuses on the enterprise letter, i.e. the meaning, issuance procedure, the need for the present company letter status and the difference between the business letter and the credit letter. The letter is a payment assurance under which a lender allows the borrower to collect capital from the financial office of another Indian bank in the form of a short-term credit. Many Indian banks are more inclined towards loans and earnings in the current competitive banking scenario that lead to ignorance by Indian Banks of their banking standards. For Nirav Modi, in India's second largest bank, PNB, the bank's officials in connivance with diamond and jewelry traders Nirav Modi took advantage of information lacunes and lax processes to defraud money that may amount to RS.11345 crore. The scope of the loan is claimed to stretch beyond what is stipulated in the laws of law, which contributed to such a great attack, in the Nirav Modi-Mehil Choksi case. This article also deals with bank fraud in relation to PNB Nirav Modi scams. Bank fraud is the use of possibly illegal ways to collect cash and property or by acting fraudulently as a bank or any other financial entity to receive capital from depositors, operated or controlled by a financial institution. Bank theft is a serious act in many cases. Although the particular elements of banking legislation vary according to jurisdiction.

Сущность механизма проведения финансового оздоровления кредитных организаций

The current situation in the banking sector of the Russian Federation reveals a high degree of instability of lending institutions. In this regard, the Bank of Russia acts as a mega-regulator: its policy is to stabilize the banking market by using various financial and administrative instruments. Most commercial banks are not able to cope with the new requirements and regulations imposed by the state. As a result, they leave the market and recognize their insolvency. The present article introduces some statistics that characterizes the state of the banking sector over the past six years and confirms the situation described above. The existing banking legislation proved unable to determine the concept of insolvency of a commercial bank. The authors proposed a more specific definition of this concept, which fully reflects the essence of this economic phenomenon. In order to avoid bankruptcy, a credit institution may resort to a financial recovery procedure. A prompt and complete procedure gives an opportunity to avoid negative consequences and resume banking activities. The authors introduced a new interpretation of the financial recovery procedure in order to highlight the essence and specific features of the mechanism in the current economic conditions. The article presents a classification and a detailed roadmap of financial recovery measures. The roadmap provides a gradual financial recovery of the lending institution, which can be interpreted as the development of an economy.

변경과 국제경제법(4) - 불가리아의 시장적 법제도 검토 -

Bulgaria was called Trakia long ago. The name Bulgaria originated from the Turkic Bulgarians who built the empire. However, the racial origin is said to be the South Slavic, which entered the middle of the two. The meaning of this is as follows. Korea and Bulgaria were located on both extremes of the meadow. They seemed to be far apart and didn't know each other well, but in fact, the two countries were relatively close and had similar influences. It can be proved by looking at the characteristics shared by the myths of the two countries.Among the legal systems in Bulgaria, the legal systems related to the market were reviewed. Court rules of the Central Bank Act were also listed and examined. The anti-discrimination law also listed and examined the principles. I have emphasized that the central bank legislation is very important in a country that has transitioned to capitalism. On the other hand, the latter legal system is being encouraged by Korea to be enacted quickly by international organizations. However, it is still not established. In this regard, it is necessary to imitate Bulgaria, which has already enacted an anti-discrimination law. Korea will have to recognize and respond to the need to adopt a universal legal system more quickly and apply it domestically.The two countries located on both extremes of the Eurasian continent have changed dramatically in the rise and fall of the nations according to the change of geopolitics. Geopolitical changes are determined from time to time by many factors, such as science, technology, and the number of populations. Nevertheless, the two countries can gain mutual benefits and add knowledge by embracing commonalities and differences and adding cooperation.

Кредитные сделки посредством цифровой платформы:свобода договора и его формы

The article deals with the novelties of the Civil Code of the Russian Federation and the banking legislation of the Russian Federation to find the way to improve the legal regulation of the electronic credit transaction mechanism. It presents the specificity of credit transactions made via a digital platform. The article investigates the freedom of contract and its forms from the digital banking perspective. The study is based on the author’s concept of transactions via a digital platform in the Russian Federation.

The varieties of banking regulation in the EU: An empirical analysis

AbstractThe EU strives to harmonize banking regulation, while its member states continue to insist on a degree of differentiation to accommodate national specifics. A new data set of national options and discretions (O&Ds) embedded in EU banking legislation facilitates systematic analysis of member states' policy preferences across multiple policy cycles. Its results suggest that states' O&D choices are related to their respective variety of banking capitalism. Coordinated and liberal market economies choose O&Ds to protect distinct subsets of regulatory parameters delaying full harmonization. Dependent market economies on the Eastern periphery use O&Ds to prevent the outflow of capital from foreign‐owned subsidiaries under their jurisdiction. These deep institutional roots suggest that many O&Ds will be carried over to the upcoming generation of EU banking legislation, despite the increased harmonization pressures in the banking union.

Соотношение понятий банковского вклада и депозита

In article concepts of a bank deposit, a deposit is considered, the questions of features of the legal relationship arising from contracts of the bank account and a bank deposit are raised. The concept of deposit is considered for compliance with the concept of bank account. It is suggested to use the concepts of bank deposit and deposit as synonyms in the civil and banking legislation of the Republic of Kazakhstan and it is proposed to legislate the equivalent application of these concepts. The concept of deposit from the position of the system of compulsory deposit insurance of the Republic of Kazakhstan is considered. The concepts of deposit and guaranteed deposit are correlated.