Under contract bank deposit(deposit), one party (bank) that has accepted the amount of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner stipulated by the agreement(Section 1 of Article 834 Civil Code RF).
This definition, which does not contain an indication of the bank's obligation to keep the depositor's funds, delimits the bank deposit agreement from the storage agreement and reflects its content. Legislation prohibits legal entities from transferring funds from a deposit to other persons; a deposit account cannot be used and replace a current account, and therefore there is no obligation for the bank to fulfill the depositor's instructions for settlements from the deposit.
Relations arising from a bank deposit agreement are governed by Chapter 44 of the Civil Code of the Russian Federation, Federal Law No. 395-I of December 2, 1990 "On Banks and banking and other normative legal acts.
In development of these provisions, the Bank of Russia has been granted the right to establish banking rules that determine the procedure for making deposits, calculating interest, and their other conditions. Banking rules must comply with the norms of the Civil Code of the Russian Federation. If the norms of the law are dispositive, the parties to the bank deposit agreement may settle relations at their own discretion.
The legal nature of the bank deposit agreement is the subject of various theories. Some authors recognize it as an irregular deposit agreement (a kind of storage), referring to the fact that, within the framework of the definition of a deposit agreement that existed at that time, the amount of money was transferred to the bank for storage and depersonalized, and the bank was obliged to return an equal amount to the depositor. The authors do not take into account the fact that the bank does not store funds, but uses them, and in this legal relationship, the remuneration is paid not to the custodian (bank), but to the one who transfers the money. There are more numerous supporters of the point of view that considers the contribution in the form of a type of loan agreement, some of them consider the contribution not a pure type of loan, but connected with some elements of storage.
Comparing a deposit with a loan, the authors proceed from their economic essence. Indeed, there is a certain similarity between these relations: the funds are transferred to the bank, which has the right to use them in its activities, and when the due date is obliged to return them. The difference between these legal relations is in the legal plane, although certain differences can be traced in the economic aspect. So, the main principles of lending (loan) are urgency, payment, repayment, target character. Deposit relations satisfy only the first three principles, and sometimes two, since funds can be transferred to the bank as a demand deposit. The principle of special purpose cannot be applied to deposit relations at all. The deposit has a special subject composition, it is always paid, in contrast to the loan agreement, which may be free of charge. A bank deposit agreement, when the depositor is an individual, is recognized as public, i.e. the bank is obliged to conclude it with each applicant, while it is impossible to induce the borrower to conclude a loan agreement. Thus, it should be recognized that, despite the apparent similarity of these legal relations, a bank deposit agreement is an independent type of agreement and cannot be considered as a type of loan agreement.
It should be noted that abroad a bank deposit agreement (bank account agreement) is not at all regulated by civil law as a separate agreement, even as a type of loan agreement. Nevertheless, we believe that the separation of the bank deposit agreement into a separate chapter and its special regulation is generally correct. This institution is highly developed and practically very relevant. However, what prevents us from considering it a type of loan and applying loan provisions to it in a subsidiary manner, as, by the way, the President quite rightly suggests Russian Federation V.V. Putin, calling the interest on the deposit the price of the loan. This would be the usual relationship between a generic contract and its type, like a loan to a credit.
Let's single out the signs of a bank deposit agreement:
2) the possibility of accounting Money on a deposit in a bank account;
3) the impossibility of the bank to take initiative independent actions to fulfill its obligations;
4) an increase in the amount of the deposit by accrued but not paid interest on the deposit (according to paragraph 2 of article 839 of the Civil Code of the Russian Federation, a different procedure may be established by agreement).
Summing up this paragraph, it should be concluded that the bank deposit agreement is proposed to be considered as a special kind of agreement with an independent legal nature.
The legal purpose of the depositor entering into this legal relationship is to receive certain interest accrued by the credit institution on the amount of money contributed to the deposit, this is the difference between a bank deposit agreement and a bank account. Actions to accept funds as a deposit are entitled to be carried out exclusively by credit organizations; this is the difference between a bank deposit agreement and a storage and loan agreement. The object of the obligation is a legally replaceable, generically defined thing (cash) or obligatory rights of claim of a monetary nature (non-cash), which also distinguishes a bank deposit agreement from storage and loan agreements. Unlike a bank account agreement, the obligation of a credit institution to accrue and pay interest to a depositor is provided for by an imperative norm of the law and cannot be excluded by agreement of the parties. Within the framework of a bank deposit agreement, it is allowed to perform a limited list of settlement operations in comparison with a bank account agreement. A credit institution is not entitled to take independent initiative actions to fulfill the obligations assigned to it under a bank deposit agreement, which distinguishes this agreement from a storage, loan and bank account agreement.
A bank deposit agreement belongs to the type of civil law obligations aimed at providing paid services, since the actions performed by a credit institution under this agreement have all the features necessary to qualify them as services. They are of an exclusive nature, only credit institutions can have the right to attract funds in deposits.
Definition of a contract. Under a bank deposit agreement, which is also referred to as a deposit, one party (bank), which has accepted the amount of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner provided for contract (Article 834 of the Civil Code). This definition, which does not contain an indication of the bank's obligation to keep the depositor's funds, delimits the bank deposit agreement from the storage agreement and reflects its content. Legislation prohibits legal entities from transferring funds from a deposit to other persons; a deposit account cannot be used and replace a current account, and therefore there is no obligation for the bank to fulfill the depositor's instructions for settlements from the deposit.
General rules regulating relations between the bank and the depositor are contained in Ch. 44 of the Civil Code, as well as in the Banking Law. In development of these provisions, the Bank of Russia has been granted the right to establish banking rules that determine the procedure for making deposits, calculating interest, and their other conditions. Banking rules must comply with the norms of the Civil Code. If the norms of the law are dispositive, the parties to the bank deposit agreement may settle relations at their own discretion.
A bank deposit agreement is a real agreement, since the rights and obligations of the parties arise only after the transfer of funds to the deposit. The bank pays the interest specified in the agreement for the use of the deposit, and if there is no such condition, then the depositor's remuneration is established on the basis of the law, i.e. The contract is always reciprocal. After receiving a deposit, the bank has certain rights and obligations, on the contrary, the depositor has only rights and does not bear any obligations, therefore the bank deposit agreement is unilateral.
With the entry into force of Part 2 of the Civil Code, a bank deposit agreement in cases where an individual is a depositor is considered public, which is directly enshrined in Art. 834 GK. This means the obligation for the bank to conclude an agreement, with some exceptions, with everyone who applied to him. Otherwise, the court may oblige the bank to conclude such an agreement and make a decision on the recovery of losses caused by the refusal. Conditions for deposits of the same type must be the same for each person.
Parties and procedure for concluding a contract. In a bank deposit agreement, one of the parties is the bank, and in some cases other credit organizations, the other party is a legal or natural person, referred to as the depositor.
Article 836 of the Civil Code provides for a simple written form for contracts of this type. However, with the exception of general rule, according to which non-observance of a simple written form entails the impossibility for the parties to refer to witness testimony to confirm the fact of the conclusion of the contract, it establishes other consequences consisting in its invalidity. Such an agreement is considered null and void. An agreement can be concluded by drawing up one document, exchanging documents by fax, telex, etc. In confirmation of making a deposit by an individual, a credit institution has the right to issue a savings book or a savings certificate, and to a legal entity - a certificate of deposit.
The savings book can be registered or bearer and must contain the name and location of the bank (if the deposit is made to a branch, then its name), the number of the account on which the deposit is reflected, the amount of the deposit and interest credited to and debited from the account, the balance funds in the account. The bank conducts all operations on the account only upon presentation of the book. If a personal savings book is lost or rendered unusable, the depositor, having sent an application to the bank, receives a new book. The bearer savings book is recognized by Art. 843 of the Civil Code a security, so the restoration of rights on it is carried out according to the rules of Art. 148 of the Civil Code and art. 294-301 Code of Civil Procedure, i.e. in the order of summons.
A savings (deposit) certificate, being a security, certifies the right of the depositor (certificate holder) to receive after due date the amount of the deposit made and the interest stipulated in the certificate. The difference between a savings certificate and a deposit certificate is that the holder of the first can only be an individual, and the second - only a legal entity. Certificates can be nominal or bearer. They follow the rules set for valuable papers. The transfer of the certificate to the bearer is carried out by handing it over to the new owner, the nominal certificate is transferred by concluding an assignment agreement. Since only natural persons can be owners of savings certificates, and legal entities can be owners of deposit certificates, it should be recognized that they can only be transferred to the relevant entities. This also corresponds with the norms of the law, which establishes various rules for deposits of legal and individuals.
The procedure for issuing and circulation of certificates is regulated by the Central Bank, which also established a list required details certificate, which, for example, include the name "savings (or deposit) certificate", the number and series of the certificate, the date and amount of the deposit, the amount of interest due, the signature of two authorized persons and the seal. Securities are strictly formal documents and the absence of at least one of the details leads to their invalidity.
Acceptance of a deposit is accompanied by the opening by the bank of a deposit account, which reflects the deposited amount. The norms of Ch. 45 of the Civil Code on the bank account agreement, unless otherwise provided by the provisions of the Civil Code on the bank deposit agreement and does not contradict the essence of the agreement.
The bank deposit agreement must be concluded not only in the proper form, but also by the proper subjects. Article 835 of the Civil Code defines the consequences of accepting a deposit by an improper person, distinguishing them depending on whether the depositor is a legal entity or an individual. So, if a deposit is accepted from a citizen by a person who does not have such a right, or in violation of the established procedure, the depositor may demand an immediate return of the deposit amount, payment of interest in the amount of the CBR refinancing rate (and for foreign currency deposits - in the amount of the average rate bank interest on short-term loans), as well as compensation for damages. If the depositor is a legal entity, then such an agreement is recognized as invalid.
Types of bank deposits. According to the subject, deposits of legal entities and deposits of individuals are distinguished. Bank deposit agreements with an individual are public agreements, which the bank may refuse to conclude only if it is unable to provide the relevant services. The bank is obliged to accept deposits from citizens on the same conditions declared by it for a deposit of this type, it cannot give preference to one in relation to the other. Another feature of deposits of individuals is the obligation of the bank to issue the amount of the deposit at the first request of the depositor. The contract cannot deprive (restrict) the citizen of this right, and if such a condition is included in the contract, it is considered void. In cases where the deposit is returned before the end of the term specified in the agreement, it is paid the interest established for demand deposits, unless the agreement provides for a different amount of interest.
Legal entities, as a rule, are not given the right to claim the deposit before the end of the established period in the contract. Unlike individuals, they are prohibited from transferring funds contributed to other persons, which is directly enshrined in Art. 834 GK. Operating regulations in the field of non-cash settlements in the territory of the Russian Federation also provide that funds from deposit accounts are subject to transfer to the settlement (current) account legal entity, after which it has the right to dispose of them at its discretion.
According to the term of making, demand deposits and term deposits are distinguished, which, in turn, have many subspecies. On a demand deposit, the bank is obliged to issue a sum of money at the first request of the depositor. These deposits usually pay minimum interest. Article 838 of the Civil Code allows the bank to change the amount of interest on demand deposits, interest can be either increased or reduced. In the latter case, the interest new rate are accrued on the amount of the deposit made earlier one month after the depositor receives the corresponding notification. The agreement may contain a condition that prohibits changing the interest rate or applying it to a previously made contribution. Demand deposits are generally replenishable.
Term deposits include deposits made on certain period, as well as deposits, the term of which is due to the occurrence of circumstances provided for in the agreement. Term deposits can be modified into demand deposits. This occurs when the deposit expires or is not claimed by the depositor, in other words, the contract is extended for an indefinite period, as well as in cases where the law or the contract gives the depositor the right to receive the sums of money placed in the deposit ahead of schedule. In the latter case, interest is paid to him in the amount established for demand deposits, unless otherwise specified by the parties in the agreement. For term deposits, it is not allowed to change the amount of interest in unilaterally. An exception may be provided only by law, and in respect of legal entities also by agreement.
In Art. 842 of the Civil Code provides for the possibility of concluding a bank deposit agreement in favor of a third party. By general rule such a person acquires the rights of a depositor from the moment he makes his first claim to the bank or expresses his intention to use the deposit in another way (sending to the bank a card with specimen signatures of persons authorized to dispose of the funds in the deposit, etc.). Other rules may be stipulated in the bank deposit agreement. So, targeted deposits for children are very common, which are a conditional deposit in favor of a third party, since in accordance with its conditions, a child can use the deposit upon reaching the age of 16. An essential condition of such an agreement is the indication of the name of the citizen or the name of the legal entity in whose favor the contribution is made; otherwise, it is considered non-enclosed. Therefore, according to Art. 842 of the Civil Code, contracts in favor of a legal entity that does not exist at the time of the conclusion of the contract, or a citizen who has died by that moment, or an unborn child are void. The rights of the depositor, until the third party expresses its intention to use the deposit, are fully owned by the person who has concluded the agreement. It can change the terms of the contract or terminate it.
Rights and obligations of the parties under the contract. The bank accepts funds from the depositor and places them in a deposit that can be replenished periodically. The Bank is not entitled to refuse to receive such amounts if the details of the depositor's account are indicated and if this is not expressly prohibited by the bank deposit agreement (for example, due to the insignificance of the amount). Having received the amount of the deposit from the depositor, the bank must open a deposit account and credit this amount to it.
The bank is obliged to pay interest to the depositor for the use of his funds. The amount of interest is determined by the parties in the contract based on bank rates, the amount of which depends on the amount and term of the deposit. Even in the absence of such a condition, the contract does not become free of charge, and the interest rate in accordance with Art. 838 of the Civil Code is determined based on the discount rate of bank interest that exists at the place of residence (location for legal entities) of the depositor. For ruble deposits, the CBR refinancing rate is applied, at currency deposits- the average rate of bank interest on short-term foreign currency loans. Interest is accrued by the bank from the next day after the deposit is received by the bank until the day it is returned to the depositor or until the day it is debited from the account for other reasons. The procedure for paying interest, the possibility of attributing unpaid interest to an increase in the amount of the deposit (capitalization) is fixed by the parties in the contract, otherwise interest is paid at the request of the depositor after each quarter, and unclaimed interest is capitalized.
One of the main obligations of the bank is to return the deposit amount and accrued interest to the depositor upon the expiration of the deposit term, and in statutory or contract cases - and in case of early return of the deposit. As a security for the return of deposits of individuals, banks in accordance with Art. 840 of the Civil Code are required to carry out their compulsory insurance. In accordance with Art. 38 of the Law on Banks and the Federal Law of December 23, 2003 "On insurance of deposits of individuals in banks of the Russian Federation" a system of compulsory deposit insurance was created. All banks that have the right to attract funds from individuals as deposits participate in it (Article 6 of the Deposit Insurance Law). The functioning of this system is provided by the Deposit Insurance Agency. Agency in accordance with Art. 15 of the Law on Deposit Insurance keeps records of banks providing deposit insurance, collects insurance premiums, coming to the mandatory deposit insurance fund, takes into account the requirements of depositors to banks.
A bank that has received a license to attract funds from individuals as deposits is registered by the Agency on the basis of a notification from the Bank of Russia on the issuance of a license to the bank. From the date of its entry into the register, each bank is obliged to pay insurance premiums, at the expense of which the compulsory deposit insurance fund is formed.
The bank deposit agreement is terminated on the grounds provided for by the Civil Code, other laws, other legal acts or the agreement. The list of general grounds for termination of obligations is contained in Ch. 26 of the Civil Code, these include, for example, the liquidation of a bank or a depositor - a legal entity, the revocation of a bank's license allowing it to raise funds in deposits, the expiration of the contract.
The contract can be terminated by mutual agreement of the parties. In accordance with Art. 452 of the Civil Code, such an agreement is concluded in writing. In this case, the agreement terminates from the moment determined by the parties, or from the moment the deposit amount and interest is issued to the depositor. It is possible to terminate the contract unilaterally, when this is permitted by law or the contract. At any time, the agreement may be terminated at the request of the depositor - an individual or under other circumstances agreed by the parties in the agreement.
8.6.3. Protection of the rights and legitimate interests of depositors of credit institutions
In order to ensure financial reliability, a credit institution is obliged to create reserves (funds), including for the depreciation of securities, the procedure for the formation and use of which is established by the Bank of Russia. The minimum amounts of reserves (funds) are established by the Bank of Russia. The amount of deductions to reserves (funds) from profit before taxation is established by federal tax laws.
A credit institution is obliged to carry out the classification of assets, separating doubtful and bad debts, and create reserves (funds) to cover possible losses in the manner established by the Bank of Russia.
A credit institution must comply with the mandatory ratios established in accordance with the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". Numerical values mandatory standards are established by the Bank of Russia in accordance with the said Federal Law.
The credit organization is obliged to organize internal control, which ensures an appropriate level of reliability corresponding to the nature and scale of the operations carried out (Article 24 of the said Law). The bank is obliged to comply with the standard required reserves deposited with the Bank of Russia, including by terms, volumes and types of funds raised. The procedure for depositing required reserves is determined by the Bank of Russia in accordance with the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)". The Bank is obliged to have an account with the Bank of Russia for holding required reserves. The procedure for opening the specified account and carrying out operations on it is established by the Bank of Russia (Article 25 of the said Law).
The role of banking law in protecting interests and rights has a very specific implementation in all its regulatory and protective functions.
Legal regulation funds of required reserves in Russia is contradictory. Within the meaning of federal law"On banks and banking activities" (and not only in meaning, if you look at the title Chapter III, which requires the creation of funds: "Ensuring the stability banking system, protecting the rights and interests of depositors and creditors of credit institutions"), a mandatory reserve fund in Russia should be created to protect the rights and interests of depositors and creditors.
As you know, during the 90s of the last century, citizens' deposits in banks were repeatedly depreciated. This greatly undermined the confidence of citizens in banks, people began to prefer to keep their savings in the currency of foreign countries or in national currency at home, but not at the bank. To restore the former authority of banks (trust of citizens to them), a number of measures were taken, including legal ones.
Thus, in December 2003, Federal Law No. 177-FZ "On Insurance of Individuals' Deposits in Banks of the Russian Federation" was adopted. The deposit itself is cash in the currency of the Russian Federation or foreign currency placed by individuals in a bank on the territory of the Russian Federation on the basis of a bank deposit agreement or a bank account agreement, including capitalized (accrued) interest on the deposit amount. Currently, about 20 operating banks in the country are not included in the deposit insurance system. These are mainly local, regional banks.
If the bank, in which citizens' deposits were insured, is subsequently declared bankrupt, then such depositors will be able to receive the lost money under the conditions specified in the Federal Law "On insurance of deposits of individuals in banks of the Russian Federation." However, if the deposits of citizens in the bank were not insured, then its depositors will be able to receive a partial refund of their losses on the conditions that are given in the commented law.
For this reason, Federal Law No. 96-FZ of July 29, 2004 "On payments by the Bank of Russia on deposits of individuals in bankrupt banks that do not participate in the system of compulsory insurance of deposits of individuals in banks of the Russian Federation" was adopted, which regulates relations for the return funds that were made by individuals as a deposit in a bank after the bank was declared bankrupt in accordance with the procedure established by law. The deposit is returned by the Central Bank of Russia.
The previous version of Art. 6 of the said law provided that maximum amount payments that the Central Bank of the Russian Federation can make to depositors cannot exceed 100,000 rubles. Also, this amount was determined on the basis of 100% of the amount of recognized claims of the depositor, minus the amounts of preliminary payments to creditors of the first stage, which were made by the bankruptcy trustee. The provision that the amount of payment is determined as 90% of the amount exceeding the limit of 100,000 rubles, but not more than 400,000 rubles in the total, did not exist before. The norms of the article under consideration determine the procedure for determining the amount that the Central Bank of the Russian Federation must pay to the depositor. The basic amount of the amount of the monetary claim, on the basis of which the amount of the depositor's claims against the bank will be determined, should be determined based on 100% of the amount of the depositor's claim, which is determined in accordance with the provisions of the bankruptcy law.
The provisions of Art. 5 of the law "On payments by the Bank of Russia on deposits of individuals in bankrupt banks that do not participate in the system of compulsory insurance of deposits of individuals in banks of the Russian Federation" provides for two conditions, in the presence of which (it is necessary that both conditions occur, and not one of them) the Central Bank of the Russian Federation has an obligation to return deposits to citizens-depositors of a bankrupt bank. In itself, the presence of two conditions does not mean that as soon as they come, the Central Bank of the Russian Federation is obliged to return their money to all depositors at once. Depositors must also follow the procedure for submitting an application to the bank, provided for in Art. 7 of this law. The filing of such an application is rather complicated by a number of conditions and is impossible until those two conditions that are mandatory under the provisions of the article in question actually occur. For this reason, from the date of occurrence of the conditions provided for by this article and until the actual receipt of funds by the depositor, it may take another 3 months to 1 year.
The first condition of the legislator is the decision by the arbitration court of the Russian Federation to declare the bank bankrupt. The procedure for consideration of this category of cases by an arbitration court is regulated in Chapter 28 of the Arbitration Procedure Code of the Russian Federation and in the law "On the Insolvency (Bankruptcy) of Credit Institutions".
The law calls the second condition the expiration of the period established in the law "On the Insolvency (Bankruptcy) of Credit Organizations" for making preliminary payments to creditors of the first priority. According to Art. 50.36 of the Law "On Insolvency (Bankruptcy) of Credit Institutions", order of execution current liabilities credit institution is determined in accordance with Art. 855 of the Civil Code of the Russian Federation. First of all, the following are satisfied:
1) claims of individuals, to whom the credit institution is liable for causing harm to their life or health, through the capitalization of the relevant time payments, as well as compensation for moral damage;
2) claims of individuals who are creditors of a credit institution under bank deposit agreements and (or) bank account agreements concluded with them (with the exception of persons engaged in entrepreneurial activities without forming a legal entity, if such accounts are opened in connection with such activities;
3) the Agency's claims under bank deposit agreements and bank account agreements transferred to it in accordance with the Federal Law "On insurance of deposits of individuals in banks of the Russian Federation";
4) claims of the Bank of Russia transferred to it in accordance with federal law as a result of making payments by the Bank of Russia on deposits of individuals in bankrupt banks that do not participate in the system of compulsory insurance of deposits of individuals in banks of the Russian Federation.
Claims of creditors under obligations secured by a pledge of property of a credit institution shall be satisfied at the expense of the value of the subject of pledge primarily to other creditors, with the exception of obligations to creditors of the first and second priority. Claims of individuals who are creditors of a credit institution under bank deposit agreements and (or) bank account agreements concluded with them, for compensation for losses in the form of lost profits, as well as for payment of financial sanctions, are included in the claims of creditors satisfied in the third priority. Claims of creditors on subordinated loans (deposits, loans, bonds) are satisfied after the claims of all other creditors are satisfied.
Satisfaction of the claims of creditors of the first priority is carried out in two stages: in the order of preliminary payments and in the order of final payments. At the same time, in the order of preliminary payments, the claims of the first priority creditors of the credit institution that, as of the day the Bank of Russia revoked its license to exercise banking operations was not a member of the mandatory deposit insurance system in accordance with the Federal Law "On insurance of deposits of individuals in banks of the Russian Federation". In the order of final payments, the claims of creditors of the first priority, which remained unsatisfied in the order of preliminary payments, are satisfied. Claims of first priority creditors filed in accordance with this Federal Law within a period of up to two months from the date of the first publication of a notice declaring a credit institution bankrupt and opening a bankruptcy proceedings. Preliminary payments to creditors of the first priority begin no later than 30 days from the date of expiration of the above period for presenting creditors' claims for the purposes of preliminary payments and not earlier than 10 days from the date of publication of the announcement on the procedure and conditions for making preliminary payments to creditors of the first priority and are carried out in within three months from that date.
Thus, the second condition can occur only after the first one, and it is possible to wait for their occurrence for about one calendar year.
Bank account
General characteristics of the bank deposit agreement
In accordance with Art. 834 of the Civil Code of the Russian Federation, under a bank deposit (deposit) agreement, one party (bank), which has accepted the amount of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner provided for contract.
The bank deposit agreement is unilateral, which means that one party to the agreement has rights that correspond to the obligations of the other party. In the bank deposit agreement, the depositor has the right to demand the return of the deposited amount and the payment of interest.
The contract in question is real, that is, it is considered concluded and, accordingly, gives rise to the rights and obligations of the parties only from the moment the depositor makes a deposit in the bank.
A bank deposit agreement in which a citizen is a depositor is recognized as a public agreement. According to Art. 426 of the Civil Code of the Russian Federation, a public contract is a contract concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it. commercial organization shall not have the right to give preference to one person over another in relation to the conclusion public contract, except as provided by law and other legal acts.
The conditions of the public contract are established the same for all depositors - individuals. In accordance with the law, a bank cannot refuse an individual to conclude a bank deposit agreement if he has the opportunity to conclude such an agreement (for example, the bank has a license, etc.).
The terms of a public contract that do not meet the above requirements are void.
It should be emphasized that the bank deposit agreement is not public if the depositor is a legal entity.
The bank deposit agreement is paid.
In accordance with Art. 838 the bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement. If there is no condition in the agreement on the amount of interest paid, the bank is obliged to pay interest in the amount determined in accordance with paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, i.e., based on the bank interest rate (refinancing rate) existing at the place of residence of the depositor (if the depositor is a legal entity - at its location) on the day the bank pays the deposit amount.
Subjects of the bank deposit agreement
Banks that have been granted such a right in accordance with a license issued by the Bank of Russia in in due course(Clause 1, Article 835 of the Civil Code of the Russian Federation).
Taking into account paragraph 3 of Art. 834 of the Civil Code of the Russian Federation and paragraph 4 of Art. 845 of the Civil Code of the Russian Federation, the rules on a bank deposit agreement are also applied to other credit institutions in accordance with the issued permit (license). At present, deposit and credit non-bank credit organizations (NCOs) have the right to attract funds from legal entities to deposits. It should be emphasized that deposit and credit NCOs do not have the right to attract funds from individuals as deposits.
In case of acceptance of a contribution from a citizen by a person who does not have the right to do so, or in violation of the procedure, statutory or banking rules adopted in accordance with it, the depositor may demand the immediate return of the deposit amount, as well as the payment of interest on it, provided for in Art.
395 of the Civil Code of the Russian Federation, and compensation in excess of the amount of interest on all losses caused to him.
If such a person accepts, under the terms of a bank deposit agreement, the funds of a legal entity, then this agreement is, in accordance with Art. 168 of the Civil Code of the Russian Federation invalid.
The above consequences also apply in the following cases:
- attracting funds from citizens and legal entities by selling them shares and other securities, the issue of which is recognized as illegal;
- attraction of citizens' funds in deposits under bills of exchange or other securities, excluding the receipt by their deposit holders on first demand and the exercise by the depositor of other rights provided for by law.
Any entity can act as a depositor under a bank deposit agreement civil law(both an individual and a legal entity), having the appropriate legal capacity (i.e., the ability to have civil rights and incur obligations) and legal capacity (i.e., the ability to acquire and exercise civil rights by their actions, create civil duties for themselves and fulfill them ). According to sub. 3 p. 2 art. 26 of the Civil Code of the Russian Federation, minors from the age of 14 have the right to independently, without the consent of their parents, adoptive parents or trustees “in accordance with the law, make contributions to credit institutions and manage them." If, by a court decision, a citizen can be recognized as incapable (due to a mental disorder), guardianship is established over him and transactions are made by his guardian (including entering into a bank deposit agreement). A citizen may also be limited by the court in capacity (due to the abuse of alcohol or drugs), then guardianship is established over him, and he can make transactions only with the consent of the guardian (Articles 29, 30 of the Civil Code of the Russian Federation).
Article 841 of the Civil Code of the Russian Federation establishes the right of third parties to deposit funds into the depositor's account. Unless otherwise provided by the bank deposit agreement, the funds received by the bank in the name of the depositor from third parties are credited to the deposit account, indicating the necessary data on his deposit account. It is assumed that the depositor has agreed to receive funds from such persons by providing them with the necessary data on the deposit account.
Types of deposits
The Civil Code of the Russian Federation establishes two main types of deposits (Article 837), depending on the terms of their return: demand deposit (a bank deposit agreement is concluded on the terms of issuing a deposit on demand) or a term deposit (an agreement is concluded on the terms of the return of the deposit after a certain agreement term). However, the agreement may provide for making deposits on other terms of their return that do not contradict the law.
Under a bank deposit agreement, regardless of its type, the bank is obliged to issue the deposit amount or part of it at the first request of the depositor, with the exception of deposits made by legal entities on other return conditions provided for in the agreement. The condition of the agreement on the refusal of a citizen from the right to receive a deposit on first demand is void.
In cases where a term or other deposit, other than a demand deposit, is returned to the depositor at his request before the expiration of the term or before the occurrence of other circumstances specified in the bank deposit agreement, interest on the deposit is paid in the amount corresponding to the amount of interest paid by the bank on demand deposits, unless the agreement provides for a different amount of interest.
Depending on the subject composition of the agreement, bank deposits are divided into deposits of individuals and deposits of legal entities.
Deposits can also be classified as deposits in favor of the depositor and deposits in favor of third parties. Until a third party expresses its intention to exercise these rights, a person who has entered into a bank deposit agreement may exercise these rights in relation to the funds deposited by him to the deposit account.
A bank deposit agreement in favor of a citizen who has died by the time the agreement is concluded, or a legal entity that does not exist at that time, is void.
Bank deposit agreement form
The bank deposit agreement must be concluded in writing (Article 836 of the Civil Code of the Russian Federation). Failure to comply with the written form of the bank deposit agreement shall entail the invalidity of this agreement. Such an agreement is void.
The written form of the bank deposit agreement is considered to be complied with if the deposit is certified:
- savings book;
– savings or deposit certificate;
- other document issued by the bank to the depositor that meets the requirements stipulated for such documents by the law, banking rules established in accordance with it and applied in banking practice business customs.
Unless otherwise provided by agreement of the parties, the conclusion of a bank deposit agreement with a citizen and the deposit of funds to his deposit account are certified by a savings book (Article 843 of the Civil Code of the Russian Federation). Savings book can be nominal or bearer. A bearer savings book is a security.
In the savings book, the following must be indicated and certified by the bank: the name and location of the bank (the location is determined by the place state registration), and if the contribution is made to a branch, also to its respective branch; deposit account number, as well as all amounts of funds credited to the account; all amounts of funds debited from the account and the balance of funds on the account at the time of presentation of the savings book to the bank.
Unless a different state of the deposit is proved, the data on the deposit indicated in the savings book are the basis for settlements on the deposit between the bank and the depositor. The issuance of a deposit, the payment of interest on it and the execution of the depositor's orders to transfer funds from the deposit account to other persons are carried out by the bank upon presentation of the savings book. If a registered savings book is lost or rendered unusable for presenting, the bank, at the request of the depositor, issues a new savings book to him.
Restoration of rights on a lost bearer savings book is carried out in the manner prescribed for bearer securities, i.e., in accordance with Art. 148 of the Civil Code of the Russian Federation, the depositor must apply to the court.
A savings (deposit) certificate is a security that certifies the amount of the deposit made to the bank and the right of the depositor (certificate holder) to receive the deposit amount and the interest stipulated in the certificate at the bank that issued the certificate, or at any branch of this bank ( article 844 of the Civil Code of the Russian Federation). Savings (deposit certificates) are not settlement and payment documents.
Savings (deposit) certificates are divided into bearer and nominal. Certificates are issued for a fixed period. In case of early presentation of a savings (deposit) certificate for payment, the bank shall pay the amount of the deposit and interest paid on demand deposits, unless the terms of the certificate stipulate a different amount of interest.
The written form of a bank deposit agreement also refers to bank cards, the issue of which is regulated by the Regulation of the Bank of Russia dated December 24, 2004 No. 266-P "On the issue of bank cards and on transactions made with the use of payment cards”.
Rights and obligations of the parties
Since the bank deposit agreement is unilateral, the depositor has the rights under this agreement, and the bank has obligations. The main obligations of the bank include the return of the deposit and the payment of interest on it.
The return of citizens' deposits by the bank is currently guaranteed compulsory insurance deposits, and in cases provided for by law and in other ways. Thus, the Law on Banks (Article 39) establishes a provision according to which banks can create funds voluntary insurance deposits.
Methods for the bank to ensure the return of deposits of legal entities are determined by the bank deposit agreement. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit. If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in case of loss of security or deterioration of its conditions, the depositor has the right to demand from the bank the immediate return of the deposit amount, payment of interest on it, calculated based on the current at the place of residence of the depositor (if the depositor is a legal entity - at its location) bank interest rate (refinancing rate) on the day the bank pays the deposit amount (Article 840 of the Civil Code of the Russian Federation).
The bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement.
Unless otherwise provided by the bank deposit agreement, the bank has the right to change the amount of interest paid on demand deposits (clause 2, article 838 of the Civil Code of the Russian Federation). However, the reduction by the bank of the agreed amount of interest is possible only for demand deposits and provided that the prohibition on such actions of the bank is not established in the contract. new size interest is applied to deposits made before the notice to depositors of the reduction in interest, after a month from the moment of the corresponding notice, unless otherwise provided by the agreement. Reducing the amount of interest on a term deposit based on the bank interest rate (refinancing rate) existing at the place of residence of the depositor (if the depositor is a legal entity - at its location) on the day the bank pays out the deposit amount is possible only if it is expressly provided for by law. An exception to this rule is made for legal entities, provided that the possibility of reducing interest is provided for in the text of the agreement.
In accordance with paragraph 1 of Art. 834 of the current Civil Code of the Russian Federation, under a bank deposit (deposit) agreement, one party (bank), which has accepted the amount of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and conditions in the manner prescribed by the contract. As can be seen from the definition of a bank deposit agreement, this agreement is one of the real, unilateral, onerous agreements.
The real nature of the bank deposit agreement stems from the fact that the obligation (the depositor's right to claim and the bank's obligations) arises only in connection with the sum of money, which is actually contributed by the depositor or entered the bank in his name. Therefore, a bank deposit agreement can be considered concluded only from the moment the bank receives the corresponding amount of money.
Pay attention to provided by law requirements to legal registration bank deposit agreement (Article 836 of the Civil Code), we can say that legal basis the occurrence of this obligation is a complex legal composition, which includes two legal facts: the conclusion of a written agreement of the parties (certification of the conclusion of the agreement with a savings book, savings or deposit certificate), as well as the actual transfer to the bank by the depositor (receipt of the bank in the name of the depositor) of a sum of money bank deposit amount.
The fact that the bank deposit agreement is a real agreement predetermines the unilateral nature of the corresponding contractual obligation. After the depositor transfers the amount of money to the bank (receipt of the amount of money to the bank in the name of the depositor), which is a necessary condition for entry said agreement in force, there are no obligations on the side of the depositor to the bank, which, in turn, without having any requirements for the depositor, bears in relation to the latter only the obligation to return the deposit amount and pay interest on it in the manner and on the conditions, stipulated by the bank deposit agreement.
The bank deposit agreement refers to reimbursable agreements for the reason that on the side of the bank there is an obligation to pay the depositor a certain remuneration in the form of interest, which is paid by the bank for the right granted to it to dispose of the funds deposited by the depositor (received by the bank in the name of the depositor). The specified obligation of the bank is provided for by an imperative norm (clause 1 of article 838 of the Civil Code) and cannot be eliminated by agreement of the parties.
Sometimes in the legal literature, such a feature of this agreement as its causal nature is also referred to as an integral feature of a bank deposit agreement. For example, L.G. Efimova emphasizes that "the basis of the contractual obligation of the bank to return the deposit is the counter provision in the form of the deposit amount previously made by the depositor.
Thus, a bank deposit agreement is a causal transaction. The purpose of the bank deposit agreement is to provide the bank with a certain amount money into ownership with the obligation to return "Efimova L.G. Bank transactions. Commentary on legislation and arbitration practice. - M .: Law firm "CONTRACT", "INFRA", 2008. S. 2--3, 61-- 62. In this regard, it should be noted that it is hardly expedient to speak of a certain common purpose bank deposit agreements. Obviously, the goals of the parties to this agreement - the bank and the depositor - are different. Earlier, attention was drawn to this circumstance, for example, by D.A. Medvedev, who writes about this: “For the bank, the purpose of the agreement is to mobilize the depositor’s free cash under commercial operations, and for the investor - in receiving interest on their capital "Belov V.A. banking law Russia: theory, legislation, practice: Legal essays. -- M.: YurInfoR, 2009. P. 299. The statement of L.G. Efimova that the basis of the contractual obligation of the bank to return the deposit is the counter provision of the amount of the deposit made by the depositor.
Due to the real nature of the bank deposit agreement, the actions of the depositor to transfer the corresponding amount of money to the bank (depositing it at the bank’s cash desk or receipt of non-cash funds to the correspondent account of the bank) remain outside the scope of contractual obligations under the bank deposit agreement, which allows qualifying this agreement as unilateral contractual obligation.
By the way, this circumstance (the unilateral nature of the bank deposit agreement) makes it possible to formalize the bank's obligation to issue a deposit and pay interest on the deposit by issuing securities, which include a bearer savings book (clause 1 of article 843 of the Civil Code), as well as savings and certificates of deposit (clause 1 of article 844 of the Civil Code). In the latter case, it is hardly possible to speak of the causal nature of the bank deposit agreement.
In addition to the mentioned features of the bank deposit agreement - the real, reimbursable and unilateral nature of this agreement - which allow you to give general characteristics of a bank deposit agreement as a civil law contractual obligation, one can name some features of the said agreement, which distinguish it, among other things, from other similar real, compensated and unilateral agreements and constituting signs of a bank deposit agreement.
Firstly, the object of this agreement can only be cash (both cash and non-cash), which are transferred by the depositor to the bank. Due to its fungibility and impersonality, funds cannot simply be "stored" in a bank, which, for the same reason, cannot be charged with the obligation to issue the same funds that were deposited by the depositor. By this feature (the specifics of the object), the bank deposit agreement differs from such real and reimbursable agreements as a storage agreement and an agreement trust management property, the maintenance of which includes the obligation, respectively, of the custodian and the trustee to return to the counterparty the property received from the latter.
Secondly, the noted specificity of the object of the bank deposit agreement results in the fact that the depositor's cash is transferred by the latter to the ownership of the bank, and non-cash money to the full disposal of the bank. The relevant actions of the depositor are a necessary condition for the emergence of an obligation under a bank deposit agreement, according to which the depositor has the right to demand that the bank issue the deposit amount and pay interest on it, and the bank has the corresponding obligation. From a bank deposit agreement, the conclusion of which is conditioned by the transfer of the depositor's funds to the ownership (at the disposal) of the bank, only a legal relationship with the participation of the depositor (as a creditor) and the bank (as a debtor) can arise.
Thirdly, the content of the bank deposit agreement is largely determined by the mandatory norms of the Civil Code and cannot arbitrarily expand or contract at the will of the parties compared to how it is defined by law. Within the framework of the imperatively established content of the agreement, which includes the right of the depositor to demand the issuance of the deposit amount and the payment of interest on it and the corresponding obligation of the bank, the parties are endowed with some initiative only in determining the conditions for the return of the deposit amount that do not contradict the law (clause 1 of article 837 of the Civil Code ).
The noted feature distinguishes a bank deposit agreement from a loan agreement, the terms of which are regulated mainly by dispositive norms, which allows the parties to significantly change the content of the agreement, for example:
exempt the borrower from paying interest (clause 1 of article 809 of the Civil Code); determine in the contract the consequences of the loss of security obligations by the borrower (Article 813 of the Civil Code);
provide for a contractual condition on the use by the borrower of the funds received for certain purposes (target loan) and the consequences of violation of this condition (Article 814 of the Civil Code) Vitryansky V.V. Bank deposit agreements, bank account and bank settlements. -- M.: Statut, 2006. S. 5--7, 163--165, 167.
Fourthly, the possibility of accounting for funds deposited by the depositor (or in his name) on a bank account (deposit account) allows you to apply the construction of an agreement in favor of a third party to a bank deposit agreement (Article 842 of the Civil Code), which is in principle excluded in relation to to the loan agreement, which can be considered concluded only from the moment of transfer (delivery) of the amount of money to the borrower.
Fifth, the procedure for fulfilling an obligation arising from a bank deposit agreement differs in significant features. Unlike many other civil law contracts, where the debtor must take active steps to fulfill the obligation, in a bank deposit agreement, the bank, being a debtor in a contractual obligation, can take actions to fulfill it (issuance of the deposit amount or its transfer to the depositor's bank account) only at the request (instruction) of the depositor. The bank's initiative fulfillment of an obligation under a bank deposit agreement (in the absence of a corresponding requirement of the depositor) is not allowed, therefore, the bank as a debtor in the obligation arising from the bank deposit agreement does not have the opportunity to terminate the specified obligation by proper performance.
Even in cases where the bank deposit agreement establishes a deadline for fulfilling an obligation (term deposit) or a condition upon the occurrence of which the bank must fulfill its obligation (conditional deposit), the occurrence of the specified deadline or the fulfillment of the necessary condition in itself (without the depositor's request) does not mean that the bank can finally provide the creditor with the performance entrusted to him and thereby terminate the obligation. For such cases, other consequences are provided: the relevant bank deposit agreement is considered extended on the terms of a demand deposit, unless otherwise provided by the agreement (clause 4 of article 837 of the Civil Code) Bratko A.G. Banking Law: A Course of Lectures. -- M.: Eksmo, 2006. S. 448, 463--466..
Sixth, in a bank deposit agreement, the obligation of the debtor (bank) to the creditor (depositor) to pay interest for using the deposit amount is relatively independent. Moreover, the interest accrued by the bank, but not paid to the depositor (due to the absence of the corresponding requirement of the latter) increases the amount of the deposit, as a result of which interest for subsequent periods of using the deposit is accrued both on the principal amount of the deposit and on previously accrued, but not paid interest, increasing the amount of the deposit.
The noted feature distinguishes a bank deposit agreement from a cash loan agreement, a loan, and all other civil law agreements that impose monetary funds on one of the counterparties. promissory note(including obligation commercial loan), where the accrual of interest is made only on the amount of the initially formed debt, and the payment of "interest on interest" (compound interest) is not allowed as a general rule.
Seventh, in a bank deposit agreement, the debtor's (bank's) obligation, which includes the latter's obligations to issue the deposit amount and pay interest (which is also typical for such agreements as loan or credit agreements), is supplemented by the obligation to constantly have a certain amount of money available. , bearing in mind that the main obligation of the bank to issue the deposit amount and pay interest must be fulfilled at the first request of the depositor (the only exception is term deposits of legal entities).
The noted features of the bank deposit agreement (in their totality) make it possible to distinguish this agreement from any other civil law agreements, including those that, like the bank deposit agreement, relate to real, unilateral and onerous agreements.
1. Definition and legal nature of a bank account agreement
The legal meaning of the client's application for opening an account and the authorization letter for opening it differ depending on the method of concluding a bank account agreement. In the event that the parties sign a single document, the client's application for opening an account and the authorization inscription on its opening should be considered as actions of its participants in fulfilling mutual obligations arising from an already concluded agreement. If a bank account agreement is concluded by exchanging documents, then such an application with the relevant documents attached is an offer, i.e. a proposal to conclude a bank account agreement, and a permissive inscription on opening an account, affixed by the executive body of the bank, represents consent to the proposal to conclude an agreement (acceptance). Such a situation is currently extremely rare (practically only when opening certain foreign currency accounts). According to the practice established in the banking system, the bank and the client conclude a bank account agreement by drawing up single document signed by both parties. The rights and obligations of the parties under the bank account agreement arise regardless of whether the client has deposited funds into an open account. Another provision may be determined by law (deposit accounts in accordance with Article 834 of the Civil Code) or by agreement of the parties.
In accordance with paragraph 2 of Art. 846 of the Civil Code, the bank is obliged to conclude a bank account agreement with a client who has applied with an offer to open an account on the conditions announced by the bank for opening accounts of this type that meet the requirements provided for by law and the banking rules established in accordance with it. He does not have the right to refuse to open an account, the performance of relevant operations for which is provided for by law, the constituent documents of the bank and the permission (license) issued to him, except in cases where such a refusal is caused by the bank's inability to accept banking service or permitted by law or other legal acts. In case of unreasonable evasion of the bank from concluding a bank account agreement, the client has the right to present him with the requirements provided for in paragraph 4 of Art. 445 GK.
Imposing on the bank the obligation to conclude a bank account agreement with the client, as well as granting the latter the right to present the bank with the requirements provided for in paragraph 4 of Art. 445 of the Civil Code, allowed in theory to formulate a conclusion about the publicity of the bank account agreement. However, this agreement cannot be recognized as public, since the bank cannot provide the same conditions of service to all customers due to differences in the legal regime of accounts established by law and banking rules. It also seems that it should not establish exactly the same conditions within each type of account, since clients hold different amounts of money in the account. In addition, the volume of operations performed by the bank in the interests of the account holder also differs. All this indicates that the bank should have the right to a differentiated approach to the issues of crediting an account, paying its expenses for performing operations on the account, setting interest for using the bank's funds on the account, etc.
In this regard, the rules established by Art. 426 GK. A similar position is taken by judicial and arbitration practice. According to paragraph 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 N 5 "On some issues of the practice of resolving disputes related to the conclusion, execution and termination of bank account agreements" (hereinafter - the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 d. N 5) at the conclusion of this agreement, a bank account is opened for the client on the terms agreed by the parties. Only in the case when the bank, on the basis of the current legislation, as well as banking rules, has developed and announced a bank account agreement of a certain type, containing the same conditions for all applicants (the price of bank services, the amount of interest paid by the bank for the use of funds in the client’s account, etc.), a bank in accordance with par. 1 p. 2 art. 846 of the Civil Code is obliged to conclude such an agreement with any client who has made an offer to open an account on the specified conditions. The bank's refusal to conclude such a bank account agreement is allowed only in the cases established by par. 2 p. 2 art. 846 GK.
4. Termination of the bank account agreement
Termination of a bank account agreement can be carried out both according to general rules (Article 450-453 of the Civil Code), and in a special manner. Special rules are provided for in Art. 859 of the Civil Code for terminating a bank account agreement. The client is granted the right to unilaterally and without reason terminate this agreement at any time. In this case, the monetary obligation of the bank includes both the balance of funds on the account and the amounts debited by payment orders from the client's account, but not transferred from the correspondent account of the bank.
For unilateral termination of the agreement by the client, it is necessary to send an application to the bank in writing. It does not require compliance with any special rules for its design. The bank is not entitled to require the client to submit a payment order for the transfer of the balance of funds upon termination of the contract (clauses 12 and 13 of the resolution of the Plenum of the Supreme Arbitration Court RF dated April 19, 1999 N 5). At the same time, the presence of the client's application for the transfer of the amount of the balance on the account cannot in itself serve as sufficient evidence of termination of the contract. Thus, the statement of the client must clearly and definitely formulate the provision for closing the account. In this case, the bank account agreement is terminated from the moment the bank receives a written application from the client to terminate the agreement or close the account, unless a later date is specified in the application itself.
As for the termination of the bank account agreement at the request of the bank, it is possible only in judicial order and under the following circumstances:
- firstly, when the amount of funds held in the client's account is lower than minimum size stipulated by the banking rules or the agreement (if such an amount is not restored within a month from the date of the bank's warning about it);
- secondly, in the absence of transactions on this account during the year (unless otherwise provided by the agreement).
The list of these circumstances is exhaustive.
Termination of the bank account agreement is the basis for closing the client's account. Therefore, after termination of the contract, the balance of funds on the account is issued to the client or, at his direction, transferred to another account no later than seven days after receiving the corresponding written application from the client. The presence of unfulfilled payment documents presented to the client's account is not an obstacle to terminating the bank account agreement (clause 16 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 N 5). Executive documents not executed in connection with the closure of the account are returned by the bank to the persons from whom they were received, with a note on the reasons for the impossibility of execution in order for them to resolve the issue of the procedure for further recovery.
In the event that the bank receives a client's application to terminate the bank account agreement or close the account, under which the bank has assumed the obligation to credit the client's account, this agreement is considered to be amended. The bank's lending obligation is terminated, and the client, in accordance with the terms of the agreement, is obliged to return the actually received loan amount and pay interest for using it.
Termination of the bank account agreement gives the parties the right in accordance with Art. 410 of the Civil Code, apply the set-off of the client's claims to the bank for the return of the balance of funds and the bank's claims to the client for the return of the loan and the execution of other monetary obligations whose due date has come.
Content and performance of the bank account agreement
1. Rights and obligations of the parties to the bank account agreement
The main responsibility of the bank is to receive and credit funds received to the account opened by the client, as well as to fulfill its instructions for transferring and issuing the corresponding amounts from the account and carrying out other operations on the account. This means that the typical actions of the bank under this agreement are the acceptance and crediting of funds received on the client's account, as well as the execution of the account holder's instructions to transfer and issue the corresponding amounts from the account. As for any exceptions to this general rule, both in the direction of expanding the range of operations performed by the bank, and in the direction of their narrowing, they are possible only in cases of their establishment by law and banking rules issued in accordance with it, which determine the regime of the corresponding account, or by agreement (Art. 848 GK).
When executing the client's orders to transfer and issue the appropriate amounts from the account and conduct other operations on the account, the bank is not entitled to determine and control the directions of use of the client's funds and establish other restrictions not provided for by law or the bank account agreement on his right to dispose of the funds at his own discretion (Clause 3, Article 845 of the Civil Code).
In order to dispose of the funds on the account, the Client is obliged to draw up and submit to the bank documents that comply with the requirements of the law and banking rules (payment orders, checks, etc.) and duly certified (signed, for example, in accordance with the signature samples in bank card client or certified by electronic means payment, other documents using analogues of a handwritten signature, codes, passwords and other means confirming that the order was given by an authorized person). Verification of the powers of persons who are granted the right to manage the account is carried out by the bank in the manner determined by the banking rules and the agreement with the client.
Since the rights and obligations of the parties under a bank account agreement, as a general rule, arise regardless of whether the client has deposited funds into the account (unless otherwise provided by law or by agreement of the parties), the agreement may provide for a provision that the bank makes payments from the account despite the client's lack of funds. In this case (Article 850 of the Civil Code), the bank is considered to have granted the client a loan for the corresponding amount from the date of such payment. At the same time, the rights and obligations of the parties related to the crediting of the account are determined by the rules on loans and credits, unless otherwise provided by the bank account agreement. By its nature, such an agreement should be considered as mixed (paragraph 3 of article 421 of the Civil Code).
The Bank is obliged to inform the client about the state of his account and the operations performed on it. Such information must be transferred to the client in the manner and within the time period stipulated by the agreement, and in the absence of relevant conditions, in the manner and within the time limits that are usual for banking practice of providing clients with information on the state of funds in the relevant account.
In practice, this obligation is expressed in the provision by the bank to the client of account statements, which record data on the balance of funds in the account, made on it for reporting period transactions, accrued interest for the use of the bank's funds of the client, the amounts charged by the bank to pay for its services, as well as the offset of mutual claims. The rules for providing account statements to customers are established in clause 2.1 of Sec. Part 2 of III of the Rules for Accounting in Credit Institutions Located on the Territory of the Russian Federation dated June 18, 1997 N 61 (with subsequent amendments and additions).
The account holder is obliged, within 10 days after the issuance of statements to him, to inform the credit institution in writing about the amounts erroneously credited or debited to the account. In case of non-receipt of objections from the client within the specified time limits, the performed transactions and the balance of funds on the account are considered confirmed. The 10-day period established by these Rules is the period of existence of the right (and not at all the period for the fulfillment of an obligation or limitation period) of the client to send a written notice to the credit institution about the amounts erroneously recorded in credit or debit of his account, therefore, its expiration deprives the client of the opportunity to eliminate erroneous entries on the account in a special manner without going to court. In a judicial proceeding, the client has the right to demand protection of his rights under the bank account agreement in accordance with the general term limitation period unless otherwise provided by law.
According to Art. 857 of the Civil Code and Art. 26 of the Law on Banks and Banking Activity, the bank is obliged to maintain the secrecy of the bank account, operations on it and information about the client. Information constituting banking secrecy may be provided only to the clients themselves or their representatives. Such information may be provided to state bodies and their officials only in cases and in the manner prescribed by law. Banking secrecy is one of those intangible benefits that, in accordance with paragraph 2 of Art. 150 of the Civil Code are protected by civil law methods. In this regard, if the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused to him.
According to Art. 851 of the Civil Code, in cases stipulated by the bank account agreement, the client pays for the bank's services for performing operations with funds on the account. Therefore, a bank account agreement can be both paid and free of charge. The fee for bank services, if provided for by the agreement, may be charged at the end of each quarter from the client's funds in the account, unless otherwise agreed by the parties.
At the same time, given that the bank uses the funds of the account holder, as a general rule, it is obliged in accordance with Art. 852 of the Civil Code to pay interest for the use of funds in the account, the amount of which is credited to the account. The amount of interest is credited to the account within the terms specified in the agreement, and if such terms are not provided for by the agreement, at the end of each quarter. The amount of interest is determined by the bank account agreement, and in the absence of a condition on their amount in the agreement, at the rate usually set by the bank for demand deposits (Article 838 of the Civil Code). However, the agreement may establish a rule that the bank does not pay interest for the use of the client's funds in his account.
Due to the fact that under the bank account agreement the parties have counter homogeneous claims, Art. 853 of the Civil Code defines the rules for offsetting counterclaims of the bank and the client on the account. Thus, the bank's monetary claims to the client related to crediting the account (Article 850 of the Civil Code) and payment for its services (Article 851 of the Civil Code), on the one hand, and the client's claims to the bank for the payment of interest for the use of funds (Article 852 of the Civil Code ), on the other hand, may be terminated by offset, unless otherwise provided by the bank account agreement.
In contrast to the general rules established by Art. 410 of the Civil Code, the offset of these requirements is carried out by the bank. At the same time, the bank must inform the client about the set-off made in the manner and within the time frame stipulated by the agreement. If such conditions are not agreed by the parties, then information on the offset is transmitted by the bank to the client in the manner and within the time limits that are usual for banking practice. The bank account agreement cannot expand (compared to that specified in Article 853 of the Civil Code) the list of counterclaims of the bank and the client, in respect of which offset is allowed. Under a bank account agreement, either the specified list can be reduced, or the set-off of these claims can be completely excluded.
According to Art. 858 of the Civil Code, restriction of the client's rights to dispose of the funds on the account is allowed only when seizing the funds on the account or suspending operations on the account in cases provided for by law. In accordance with Art. 27 of the Law on Banks and Banking Activities on funds in accounts, arrest can be imposed only by a court (arbitration court), a judge, as well as by order of the preliminary investigation authorities, if there is a prosecutor's sanction. However, according to Art. 46, 72, 76 and 77 of the Tax Code, the tax authorities have the right to use the seizure of property and the suspension of operations on the account as security for the fulfillment of the obligation to pay taxes and fees. When seizing the funds on the accounts, the credit institution immediately upon receipt of the decision to seize shall terminate debit transactions for this account within the limits of the funds on which the arrest is imposed.
Bank according to Art. 849 of the Civil Code is obliged to carry out the relevant operations on the account within the time limits established by law and the contract. Thus, the crediting of the funds received to the client's account must be carried out no later than the day following the day the bank receives the corresponding payment document, unless a shorter period is provided for by the bank account agreement. Consequently, the law provides for a deadline for crediting funds to the account, which in the contract can only be revised downward. As for the issuance or transfer of funds by order of the client from his account, these operations must be carried out no later than the day following the day the bank receives the relevant payment document, unless other terms are provided by law, banking rules issued in accordance with it or an agreement. bank account. This means that more than long term issuance or transfer of funds from the account.
In case of delay in execution by the bank of the order to transfer funds from the account when bank transfer(i.e. when making payments by payment order), the client has the right to refuse to execute this order until the moment the funds are debited from the correspondent account of the payer's bank and demand the restoration of the amount not transferred under the payment order on his account. Wherein payment order must be revoked by the client.
2. Withdrawing funds from a bank account
According to Art. 854 of the Civil Code, funds are debited from the account by the bank on the basis of the client's order. If there are funds on the account, the amount of which is sufficient to satisfy all the requirements for the account, these funds are debited from the account in the order in which the client's orders and other documents for debiting are received, unless otherwise provided by law, i.e. in order of calendar priority (Article 855 of the Civil Code).
However, in the event that the funds on the account are not enough to satisfy all the requirements presented to it, the debiting of funds is carried out in the order of priority established by law. The Civil Code provides for these cases in the following order:
- first of all, the write-off executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the recovery of alimony;
- in the second place, write-offs are made according to executive documents providing for the transfer or issuance of funds for settlements on the payment of severance benefits and wages with persons working under an employment contract, including under a contract, for the payment of remuneration under an author's agreement;
- in the third place, write-offs are made according to payment documents providing for the transfer or issuance of funds for settlements on wages with persons working on employment contract(contract), as well as on contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and the State Employment Fund of the Russian Federation and mandatory health insurance;
- in the fourth queue, write-offs are made according to payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third queue;
- in the fifth place, write-offs are made under executive documents providing for the satisfaction of other monetary claims;
- in the sixth place, write-offs are made for other payment documents in the order of calendar priority.
It is important to keep in mind that debiting funds from the account for claims relating to one queue is made in the order of the calendar order of receipt of documents.
The mandatory sequence provided for in Art. 855 of the Civil Code, has become the subject of disputes related to determining the priority of the requirements of the tax authorities in relation to other requirements, in particular on the transfer or issuance of funds for payroll settlements with persons working under an employment contract (contract). The Constitutional Court of the Russian Federation in its resolution of December 23, 1997 N 21-P "On the case of checking the constitutionality of paragraph 2 of Article 855 of the Civil Code of the Russian Federation and part six of Article 15 of the Law of the Russian Federation "On the fundamentals tax system in the Russian Federation" in connection with the request of the Presidium of the Supreme Court of the Russian Federation "indicated that the provision of par. 4 p. 2 art. 855 of the Civil Code does not correspond to Part 1 of Art. 19 of the Constitution of the Russian Federation. At the same time, the Constitutional Court of the Russian Federation proceeded from the fact that, established in par. 5 p. 2 art. 855 of the Civil Code, mandatory write-off of payment documents providing for payments to the budget and extra-budgetary funds means only the collection of debts on these payments on the basis of instructions from tax authorities and authorities tax police, which are indisputable.
As a result, according to Art. 17 of the Federal Law of March 26, 1998 "On the Federal Budget for 1998" and Art. 23 of the Federal Law of February 22, 1999 "On the Federal Budget for 1999" in order to ensure the receipt of revenues in federal budget pending payment in accordance with the decision Constitutional Court RF changes in paragraph 2 of Art. 855 of the Civil Code, it is established that if the funds on the taxpayer’s account are insufficient to satisfy all the requirements presented to him, the debiting of funds under payment documents providing for payments to the budget and state non-budgetary funds, as well as the transfer of funds for payroll settlements with persons working on a labor basis agreement (contract) is made in the order of calendar priority of receipt of the specified documents after the transfer of payments attributed by the Civil Code to the first and second priority.
In accordance with paragraph 2 of Art. 854 The debiting of funds on the account without the client's order is allowed by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client.
The legislation provides for a number of cases when debiting funds from an account can be carried out without the client's order (indisputable debiting). Undisputed debiting of funds from the account is provided for by law:
- firstly, to ensure the requirements of public authorities in connection with the violation of obligations to pay tax and other obligatory payments;
- secondly, to ensure payment certain types counterparties under certain types of contracts for products transferred or services rendered.
Such a right, in particular, is granted to tax authorities (Article 46 of the Tax Code), customs authorities (Article 124 of the Labor Code), Pension fund Russian Federation, fund of obligatory medical insurance, etc.
As for the second group of cases of indisputable write-offs, they mainly come down to settlements with utilities and power supply organizations for resources supplied to customers (electricity and heat, water supply, gas, oil products), except for housing and communal and budget organizations as well as the population. A similar procedure has been established for the provision of transport and communication services.
Finally, the debiting of funds on the account without the client's order is allowed in cases stipulated by the agreement between the bank and the client. The client in accordance with paragraph 2 of Art. 847 of the Civil Code has the right to give the bank an order to debit funds from its account at the request of third parties, including in connection with the fulfillment of its obligations to these persons. The Bank is obliged to accept such instructions if they contain written instructions containing the necessary data, allowing, upon presentation of the relevant request, to identify the person entitled to submit it.
3. Responsibility of the bank under the bank account agreement
The responsibility of the bank is provided for in cases of untimely crediting of funds received by the client to the account, their unreasonable write-off by the bank from the account, as well as failure to comply with the client's instructions to transfer funds from the account or to issue them from the account (Article 856 of the Civil Code).
In cases where the bank, which is obliged to pay interest for the use of the client's funds in accordance with Art. 852 of the Civil Code, does not properly execute the order to transfer funds, i.e., having debited funds from the client’s account, does not transfer them for their intended purpose, the client has the right to demand that the bank be held liable (Articles 856, 866 of the Civil Code). At the same time, the bank is obliged to pay interest for the use of funds on the client's account until the corresponding amount is debited from the client's account. If the bank, without fulfilling the client's instructions, does not write off the corresponding amount of money from the account, the client has the right to demand both the application of the specified liability and the accrual of interest for the use of funds in the account.
In judicial and arbitration practice, the issue of the proper execution of a client's order to transfer funds from an account when making a bank transfer caused certain difficulties. In this regard, paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 N 5 clearly defines that, according to Art. 865 of the Civil Code, the payer's bank is obliged to transfer the appropriate amount to the beneficiary's bank, which, from the moment funds are credited to its correspondent account and receipt of documents that are the basis for crediting funds to the beneficiary's account, has an obligation based on a bank account agreement with the recipient of funds to credit the amount to account of the latter (clause 1 of article 845 of the Civil Code). Therefore, the obligation of the payer's bank to the client under the payment order is considered fulfilled at the time of the proper transfer of the corresponding amount of money to the account of the beneficiary's bank, unless otherwise provided by the agreement between the client's bank account and the payer's bank.
Improper performance of operations on the account gives rise to the obligation of the bank to pay interest to the client in the manner and in the amount established by Art. 395 GK. Interest is subject to accrual on the amount of money for which the corresponding operation on the account was improperly performed. In accordance with paragraph 20 of the resolution of the Plenum Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money" penalty under Art. 856 of the Civil Code, is legal and can be applied to a bank serving a client on the basis of a bank account agreement. Considering that the specified penalty is collected in the manner and in the amount established by Art. 395 of the Civil Code, it is a credit. If the client has suffered losses due to improper performance of operations on the account, then he has the right to recover them from the bank in the part not covered by the penalty.
It is important to bear in mind that the liability under Art. 856 and 866 of the Civil Code or the agreement, applies to the bank only for the period before the termination of the agreement. If, after termination of the agreement, the bank unlawfully withholds the balance of funds on the account, as well as the amounts on unfulfilled payment orders, the bank's liability arises in accordance with Art. 395 GK. In cases when, after the termination of the bank account agreement, the balance of funds on the account is not issued to the client or, at his instruction, is not transferred to another account within seven days after receiving his written application, the bank is considered to be unlawfully withholding them by the person. Since there are no contractual relationship terminated by termination of the contract, the bank in accordance with Art. 1105 and 1107 of the Civil Code is obliged to return former client the amount of the debt and pay interest on the amount of unjust monetary enrichment for the use of other people's funds in accordance with Art. 395 of the Civil Code from the time when the acquirer found out or should have found out about the groundlessness of receiving or saving money, i.e. after the expiration of Art. 859 of the Civil Code of a seven-day period.
Types of bank accounts
1. Bank account system
Depending on the volume of settlement transactions that a bank client is entitled to make, accounts can be divided into settlement, current and special (budget, currency, loan, deposit).
Depending on the subject composition of the agreement, accounts can also be divided into client and interbank (in the Bank of Russia, "loro-nostro").
Depending on the technical means, formalizing the relationship of the parties under the contract, you can select card accounts. Settlement, current and some special accounts (for example, deposit and loan) can be issued with bank cards (card accounts). Settlements on accounts issued with bank cards are regulated by the Regulations on the Procedure for Issuing Bank Cards by Credit Institutions and Making Settlements for Operations Made with Their Use, approved by the Bank of Russia on April 9, 1998 N 23-P.
2. Checking account
Settlement accounts are currently opened for all legal entities, as well as individual entrepreneurs. Bank customers are entitled to carry out all types of settlement operations (non-cash payments) from the current account. In addition, banks provide them with services of a cash nature (acceptance and issuance of cash) in accordance with the rules established by law.
Along with cash and non-cash payments for reimbursable civil law contracts and other transactions, as well as payments of a social nature (salary, vacation pay, etc.), customers pay taxes and other obligatory payments from their current account. Associated with this is a number of public law restrictions applied when opening and maintaining a current account. So, in order to open a current account, the client is obliged to provide the bank with a document on tax registration, as well as inform about its opening to extra-budgetary funds.
Legal entities and individual entrepreneurs have the right to open an unlimited number of settlement accounts. However, since a number of legal entities had debts to the budget and off-budget funds, they were obliged to carry out all settlements for the repayment of this debt from one of the ruble settlement accounts in one of the banks or other credit institution (account of the debtor), which was specially registered in tax authorities. Funds received on any other accounts of debtors in banks or other credit institutions, as well as the balances of funds on them, with some exceptions, were subject to full transfer to the account of the debtor. At the same time, with reference to Part 2 of Art. 846 of the Civil Code, banks and other credit organizations were allowed to refuse to perform operations on the accounts of debtors on instructions that did not comply with the provisions of this Decree.
3. Current accounts
Current accounts are opened for organizations that do not have the rights of a legal entity, including branches and representative offices of legal entities. In addition, separate subdivisions of legal entities located outside their location may open settlement sub-accounts, which, in their own way, legal regime almost indistinguishable from current accounts. On current accounts and settlement sub-accounts, these organizations can carry out a limited range of settlement operations related to the main activity of a legal entity. From current accounts, as well as from settlement sub-accounts, as a rule, social payments, and the banks in which they are open do not provide cash services to these customers. However, since in some cases branches, representative offices, as well as other separate divisions legal entities are independent entities tax relations the opening and maintenance of these accounts shall be subject to public law rules similar to those applicable to the opening and maintenance of a current account.
Traditionally, bank accounts opened by citizens are current. According to such accounts, citizens have the right to make payments in a non-cash manner. The only limitation is the inability to make payments related to business activities.
Interbank accounts are allocated according to the subject composition. The subjects of this type of bank account agreement are only banks and other credit organizations. According to Art. 860 of the Civil Code of the Rules of Ch. 45 of the Civil Code apply to correspondent accounts, correspondent sub-accounts, other accounts of banks, unless otherwise provided by law, other legal acts or banking rules established in accordance with them.
Credit institutions are required to have correspondent accounts with the Central Bank of the Russian Federation. In accordance with Art. 15 of the Law on Banks and on Banking Activities, in order to pay for the authorized capital, they open a correspondent account in the system of the Bank of Russia. Correspondent relations between the Bank of Russia and credit organizations built on a contractual basis. On behalf of the Bank of Russia, its special subdivisions - cash settlement centers (RCCs) enter into correspondent relations with credit institutions. In addition, according to Art. 860 of the Civil Code and Art. 28 of the Law on Banks and Banking Activities, correspondent relations can also be used as correspondent relations, which received the name of "loro-nostro" accounts.
Issues related to the rules for conducting operations to write off funds from correspondent accounts (sub-accounts) of credit institutions are regulated by the Regulations on the Procedure for Conducting Operations to Write Off Funds from Correspondent Accounts (Sub-Accounts) of Credit Institutions approved by central bank RF March 1, 1996 N 244.
The procedure and conditions for establishing correspondent relations with foreign banks determined by the Central Bank of the Russian Federation.
The concept of a bank deposit agreement
1. Definition of a bank deposit agreement
2. Legal nature of the bank deposit agreement
The bank deposit agreement, by its legal nature, is very close to the bank account agreement. According to paragraph 3 of Art. 834 of the Civil Code, the rules on the bank account agreement apply to the relations between the bank and the depositor on the account to which the deposit was made (unless otherwise provided by the rules of Chapter 44 of the Civil Code or follows from the essence of the bank deposit agreement).
Based on the generality of the object composition of both agreements, as well as the meaning of banking activities for maintaining customer accounts, it can be concluded that cash or non-cash funds received by the bank from the depositor, regardless of the form of the bank deposit agreement, are always recorded (listed) on certain bank accounts . Therefore, it would seem quite legitimate to consider a bank deposit agreement as a special type of bank account agreement. However, for a bank deposit agreement, the presence of non-cash funds in a specific bank account is a purely technical characteristic.
Assessing legal nature bank deposit agreement, it is impossible not to notice its differences from the bank account agreement. The bank deposit agreement is real, i.e. is considered concluded only from the moment the depositor deposits the amount of money in the bank. The deposit account is not allowed to have debit balance, which means that it is also impossible to lend to the bank. As noted earlier, the bank account agreement and the bank deposit agreement have different purposes, and their final contractual results do not coincide.
Finally, it is also important that the bank deposit agreement is singled out in a separate chapter of the second part of the Civil Code. This gives grounds to assert that it is considered by the legislator as an independent type of civil law contract.
3. Parties to the bank deposit agreement
The parties to the bank deposit agreement are the bank and the depositor. This agreement refers to the number of banking operations and therefore involves the participation of a special entity on the side of the service provider. At the same time, the service provider is not just a credit institution, but a bank (Article 1 of the Law on Banks and Banking Activities). According to Art. 835 of the Civil Code, art. 13 and 36 of the Law on Banks and Banking Activities, banking operations are carried out only on the basis of a license issued by the Central Bank of the Russian Federation. In addition, in accordance with Art. 36 of the Law on Banks and Banking Activities, the right to attract deposits of funds from individuals is granted only to those banks, from the date of state registration of which at least two years have passed. At the same time, if the law grants the right to accept deposits (deposits) from legal entities not to banks, but to other credit organizations, the rules on the bank deposit agreement (clause 4 of article 834 of the Civil Code) apply to the relations of these organizations and legal entities-depositors.
According to Art. 835 of the Civil Code, in case of acceptance of a deposit from a citizen by a person who does not have the right to do so, or in violation of the procedure established by law or banking rules adopted in accordance with it, the depositor may demand an immediate return of the deposit amount, as well as payment of interest on it, provided for in Art. 395 of the Civil Code, and compensation in excess of the amount of interest on all losses caused to him. If such a person accepts, under the terms of a bank deposit agreement, the funds of a legal entity, such an agreement is invalid as it does not comply with the requirements of the law (Article 168 of the Civil Code).
Unless otherwise provided by law, the same consequences apply in cases of attracting funds from citizens and legal entities by selling them shares and other securities, the issue of which is recognized as illegal, as well as accepting funds from citizens in deposits against promissory notes or other securities that exclude receipt by their deposit holders on demand and the exercise by the depositor of other rights provided for by the rules of the Civil Code on a bank deposit agreement.
Any subject of civil law can act as a contributor. In particular, in accordance with paragraph 2 of Art. 26 of the Civil Code, minors aged fourteen to eighteen years of age have the right to independently, without the consent of their parents, adoptive parents and guardian, in accordance with the law, make deposits to credit institutions and dispose of them.
According to Art. 841 of the Civil Code, it is allowed for third parties to deposit funds into the depositor's account. The bank, unless otherwise provided by the bank deposit agreement, is obliged to credit the deposit account with funds received in the name of the depositor from third parties, indicating the necessary data on his deposit account. At the same time, the law establishes the presumption that the depositor agreed to receive funds from such persons, since he provided them with the necessary data on the deposit account.
4. Conditions of the bank deposit agreement
The only essential condition of the bank deposit agreement is the subject. This agreement is always paid, i.e. under no circumstances can it be interest-free. However, the absence of an agreement on the amount of interest does not make it unconcluded. According to Art. 838 of the Civil Code, the bank must pay interest to the depositor on the amount of the deposit in the amount determined by the bank deposit agreement. If there is no condition in the agreement on the amount of interest paid, the bank is obliged to pay interest in the amount determined in accordance with paragraph 1 of Art. 809 GK. This means that their size is determined by the bank interest rate (refinancing rate) existing at the place of residence of the depositor (and if the depositor is a legal entity, at its location).
5. Bank deposit agreement form
According to Art. 836 of the Civil Code, a bank deposit agreement must be concluded in writing. The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate or other document issued by the bank to the depositor that meets the requirements stipulated for such documents by the law, the banking rules established in accordance with it and the business practices used in banking practice. . Failure to comply with the written form of the bank deposit agreement shall entail its invalidity (insignificance).
The law specifically regulates the certification of deposits with a savings book and a savings or deposit certificate. According to Art. 843 of the Civil Code, as a general rule, the conclusion of a bank deposit agreement with a citizen and the deposit of funds into his deposit account are certified by a savings book, although otherwise may be provided by agreement of the parties. The savings book must contain and be certified by the bank its name and location (and if the deposit is made to a branch, also its corresponding branch), the account number for the deposit, all amounts of funds credited to the account and debited from the account, and the balance of funds on the account at the time of presenting the savings book to the bank. The issuance of a deposit, the payment of interest on it and the execution of the depositor's orders to transfer funds from the deposit account to other persons are carried out by the bank upon presentation of the savings book. With this in mind, the law establishes a presumption according to which, unless proven otherwise, the state of the deposit, as well as the data on the deposit indicated in the savings book, are the basis for settlements on the deposit between the bank and the depositor. Consequently, the burden of proving the inaccuracy, incompleteness or unreliability of the data contained in the savings book lies with the depositor.
A bank deposit agreement may provide for the issuance of a personal savings book or a savings book to bearer. A nominal savings book is a document that only certifies that the deposit belongs to a certain person, and a bearer savings book is recognized by law as a security.
In this regard, the consequences of the loss or bringing into disrepair for presentation to the bank of a personalized savings book and a savings book to bearer are different. If a personalized savings book is lost or rendered unusable for presentation, the bank, at the request of the depositor, issues a new one to him. In contrast to this, the restoration of rights on a lost bearer savings book is carried out in the manner prescribed for bearer securities (Article 148 of the Civil Code).
A savings and deposit certificate is also a security (Article 844 of the Civil Code). A savings (deposit) certificate certifies the amount of the deposit made to the bank and the rights of the depositor (certificate holder) to receive, after the expiration of the established period, the amount of the deposit and the interest stipulated in the certificate in the bank that issued the certificate, or in any branch of this bank. Both savings and deposit certificates can be bearer or registered. Detailed regulation of the requirements for these certificates, as well as the rights to issue and place them by banks, is established by the Regulations on Savings and Deposit Certificates of Credit Institutions, approved by the letter of the Bank of Russia dated February 10, 1992 N 14-3-20 1998 N 333-U).
A savings (deposit) certificate cannot serve as a settlement or means of payment. Certificates are issued only in the currency of the Russian Federation; issuance of certificates in foreign currency is not allowed. Certificates must be current. Interest rates on them are set by the authorized body of the credit institution. In case of early presentation of a savings (deposit) certificate for payment, the bank shall pay the amount of the deposit and interest paid on demand deposits, unless the terms of the certificate stipulate a different amount of interest.
The written form of a bank deposit agreement may also be certified by other documents issued by banks to depositors, which must meet the requirements provided for by the law, the banking rules established in accordance with it and the business practices used in banking practice. So, recently, the use of deposits of citizens has become widespread in domestic banking practice. plastic cards, which allow, on the terms determined by the bank deposit agreement, to carry out, as well as with a savings book, settlement operations. The procedure for issuing such cards, as well as the rules for carrying out settlement transactions using them, are established by the Regulations on the Procedure for Issuing Bank Cards by Credit Institutions and Making Settlements for Operations Made with Their Use, approved by the Bank of Russia on April 9, 1998 N 23-P.
Content and performance of the bank deposit agreement
Regardless of the type of deposit, the bank is obliged to issue the deposit amount or part of it at the first request of the depositor. Consequently, the depositor at any time has the right to unreasonably demand unilateral amendment or termination of the bank deposit agreement. At the same time, the condition of the agreement on the refusal of a citizen from the right to receive a deposit on first demand is void. An exception to this rule is a deposit made by a legal entity on other terms of return (i.e. not on demand) provided for by the agreement.
For deposits other than demand deposits (including time deposits), when the bank must return the amount to the depositor at his request before the expiration of the term or before the occurrence of other circumstances specified in the bank deposit agreement, he pays interest in the amount applied on demand deposits unless the contract provides for a different amount.
In cases where the amount term deposit after the expiration of the term or the amount of the deposit made on other terms of return, upon the occurrence of the circumstances provided for in the agreement, is not claimed by the depositor, the agreement is considered extended on the terms of a demand deposit, unless otherwise provided by the agreement.
2. Other types of bank deposits
Along with this, deposits can be divided according to the personality of the depositors into deposits of individuals and deposits of legal entities. The differences between them lie in the greater contractual freedom of banks and legal entities, the lower degree of guarantee of the return of the deposit for legal entities, and also in the fact that, according to Art. 834 of the Civil Code, legal entities, in principle, are not entitled to transfer funds in deposits to other persons.
According to Art. 842 of the Civil Code, deposits can also be divided into deposits in favor of the depositor and deposits in favor of third parties. So, a deposit can be made to a bank in the name of a certain third party. As a general rule, such a person acquires the rights of a depositor from the moment he presents the bank with the first claim based on these rights, or expresses to the bank in another way his intention to exercise such rights. A different procedure for acquiring the rights of a depositor by this person may be provided for by a bank deposit agreement.
An important feature of this type of agreement is that, along with the subject, its essential condition is the indication of the name of the citizen or the name of the legal entity in whose favor the contribution is made. A bank deposit agreement in favor of a citizen who has died by the time the agreement is concluded, or a legal entity that does not exist at that time, is void.
Before a third party expresses its intention to exercise the rights of a depositor, a person who has concluded a bank deposit agreement may exercise the rights of a depositor in relation to the funds deposited by him to the deposit account.
By intended purpose deposits can be divided into deposits for the birth of a child or for reaching a certain age, for marriage, pension, etc. It should be borne in mind that all such deposits are a type of term deposit.
3. Deposit operations of the Bank of Russia
A special type of deposit transactions is the carrying out by the Central Bank of the Russian Federation of operations to attract funds from resident banks in the currency of the Russian Federation to deposits opened with the Bank of Russia. The specificity of these transactions lies in their target orientation, since the Bank of Russia conducts such deposit operations in accordance with Art. 4 and 45 of the Law on the Bank of Russia to regulate the liquidity of the banking system within the framework of the unified state monetary policy developed and implemented by it in cooperation with the Government of the Russian Federation, aimed at protecting and ensuring the stability of the ruble. By attracting bank funds to deposits, the Bank of Russia withdraws excess funds (liquidity) from banks using interest rate policy in order to strengthen the ruble.
The performance by the Bank of Russia of the above deposit operations is carried out in the form of deposit auctions, deposit operations on a fixed interest rate, accepting on deposit funds of banks that have entered into a General Agreement with the Bank of Russia on conducting deposit operations in the currency of the Russian Federation using the Reuters Dealing system, as well as accepting funds on deposit from banks on the basis of a separate agreement defining the terms of the deposit.
The participants in such deposit operations are the Central Bank of the Russian Federation represented by its territorial offices and their settlement subdivisions (GRCC, RCC) and resident banks of the Russian Federation. When carrying out these operations, the Bank of Russia has the right to determine counterparties with which it will enter into contractual relations. In addition, it has the right to suspend the said General Agreement on Conducting Deposit Operations for an indefinite period without prior notice to the counterparty bank in cases of its failure to comply with the mandatory reserve requirements of the Bank of Russia, the presence of overdue debt on Bank of Russia loans or for other reasons.
The Bank of Russia also determines the date and method of conducting deposit auctions and deposit operations at a fixed interest rate. Deposit auctions and deposit operations at a fixed interest rate are formalized by an "Application Agreement" for participation in a deposit auction Central Bank Russian Federation, or to place a deposit with the Central Bank of the Russian Federation at a fixed interest rate. Deposit operations using the Reuters Dealing system are conducted by the Bank of Russia on standard terms and conditions established by the Regulations on the Procedure for Conducting Deposit Operations by the Central Bank of the Russian Federation with Resident Banks in the Currency of the Russian Federation and the General Agreement on Deposit Operations in the Currency of the Russian Federation Using the System Reuters Dealing. As for accepting bank funds on deposit on the basis of a separate agreement that determines the terms of the deposit, it is carried out by the territorial institutions of the Bank of Russia or their settlement divisions by decision of the Central Bank of the Russian Federation.
Funds are transferred to a deposit opened with the Bank of Russia by a bank payment order to debit funds from its correspondent account opened with the Bank of Russia settlement network division to a separate personal account for deposit accounting opened with the corresponding division of the Bank of Russia settlement network. The fact of crediting the amount of the deposit is officially confirmed by an extract from the deposit account opened with the Bank of Russia. Deposits opened with the Bank of Russia cannot be rolled over. The early withdrawal by the bank of funds placed on deposit with the Bank of Russia is also not allowed.
Interest on deposit operations of the Bank of Russia is accrued according to the simple interest formula for the period of the actual term for raising funds up to and including the date of return of the deposit, on the balances of funds on individual personal accounts for the accounting of deposits, for each concluded deposit transaction. Interest on deposits opened with the Bank of Russia is paid simultaneously with the return of the deposit amount to the bank.
In case of non-fulfillment or improper fulfillment by the bank of its obligations to transfer funds to the deposit, the Bank of Russia returns to the correspondent account of the paying bank the amount of money transferred by it without accruing interest on the specified amount, and, in addition, charges a penalty on the deposit amount in the amount of the double refinancing rate. The collection of this fine is carried out by the Bank of Russia in an indisputable manner.
In the event of non-performance or improper performance of obligations under a deposit transaction by the Bank of Russia, it shall pay the bank a fine of the same amount.
