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От редакции. В этом номере мы начинаем новую рубрику - «Russian Law in English», в которой будем публиковать статьи российских ученых на английском языке. Цель рубрики - познакомить зарубежных читателей с разработками ученых из России, привлечь их к дискуссии по актуальным проблемам российского, международного и сравнительного права. Рубрику открывает статья А. В. Губаревой и С. П. Степкина «Валютное регулирование в российской банковской системе». Русскоговорящие читатели смогут ознакомиться с кратким содержанием статьи в аннотации, размещенной в конце материала.
А. V. Gubareva
Ural State Law University (Yekaterinburg),
S. P. Stepkin
Russian State Social University (Moscow)
CURRENCY REGULATION IN RUSSIAN BANKING SYSTEM
The liberalization of currency regulation in the 1990-2000s was «partial». To date, significant restrictions remain regarding the requirements of the law on the procedure for performing currency operations and the prohibitive nature of the activities of Russian business. Control mechanisms do not allow to achieve macroeconomic targets for the stability of the ruble. The authors state that there is a need for reform in this area.
The monetary policy plays an important role in regulating the market economy. It is a set of measures implemented in the sphere of international monetary and economic relations in accordance with the current and strategic plans of the country. The monetary policy of Russia is aimed at ensuring stability of its currency and domestic foreign exchange market as factors of development of the national economy and international economic cooperation. This policy is implemented by including foreign currency denominated obligations in currency regulation. Currency regulation is understood as «a set of purposeful actions of the state to form or change existing public relations on currency values through the application of legal and economic measures of influence». The principle of state responsibility for national security and development of the national economy is a unique principle for the Russian legal system. This should be a constitutional principle common to all branches of the Russian law. The article analyzes to what extent the principles of legal security may influence the legal regime of currency control in the Russian banking system.
Keywords: currency, currency regulation, currency operations, stability of the ruble, banking system
Introduction
International security is a system of international relations based on observance of universally recognized principles and norms of international law by all states. This excludes solution of disputable issues and disagreements between them by force or threat. The principles of international security envisage the establishment of peaceful coexistence as a universal principle of interstate relations, ensuring equal security for all states, creating guarantees in the military, political, economic and humanitarian
fields. One of the most important «economic vectors» within the framework of international security is the establishment of a new economic order that ensures equal economic security for all countries.
Currency control and national economic interests
The concept of national security. The
existence of this principle, in particular, is indicated by the Constitutional Court of the Russian Federation in its Resolution of May 14,
1999 № 8-P «On the Case on the Verification of the Constitutionality of the Provisions of Part One of Article 131 and Part One of Article 380 of the Customs Code of the Russian Federation in Connection with the Complaint of a Closed Joint Stock Company the Siberian Express Agency and Citizen S. I. Tenenev, as well as the Complaint of Y. & g. Reliable Services, Inc.». Part 4 (2) says «...In order to protect the sovereignty and economic security of the Russian state, the rights and legitimate interests of citizens, the provision of a single economic space, the legislator, establishing the customs territory of the Russian Federation, the customs border and the appropriate procedure for the movement, control and clearance of goods and vehicles, and as well as the imposition of customs payments and their payment, etc., may provide for administrative measures of a compulsory nature, as well as specific offenses and the corresponding sanctions». But of all the known legal entities of the economic cycle, only foreign economic law has a legal basis to claim its rights to this principle. In our opinion, this principle consists of the following imperatives:
the Russian Federation, its bodies and officials in their activities, directly or indirectly affecting the external economic sphere, must be guided by the interests of ensuring security of the state, its citizens and stimulating economy development;
all normative and legal acts, non-normative acts, actions, decisions and approvals on issues of foreign economic activity should be based on this principle;
all transactions involving foreign investments in strategic sectors of the economy should be checked for compliance with national security;
state intervention in foreign economic activity can be caused only by the goals of ensuring national security and developing the Russian economy (a similar principle is used by the United States of America, including in the foreign economic sphere [Stober 2008: 144].
Part 1 of Article 1, Article 4 (9, 10), Article 5, Article 12 of Federal Law of December 8, 2003 № 164-FZ «On the Basics of State Regulation of Foreign Trade Activity» establish the responsibility of the state for national security and development of the national economy, prohibit the state and its bodies to cause dam-
age to participants of foreign economic activity and the economy of Russia. In general, there is no norm in Federal Law № 164-FZ that would not be subordinated to this principle. Moreover, it is reflected in Article 4 of Federal Law of July 19, 1998 № 114-FZ (as amended on July 10, 2012) «On Military and Technical Cooperation of the Russian Federation with Foreign States», Articles 4 and 5 of Federal Law of July 18, 1999 № 183-FZ (as amended on December 6, 2011) «On Export Control», Article 1 of Federal Law of November 27, 2010 № 311-FZ (as amended on April 5, 2013) «On Customs Regulation in the Russian Federation», the Preamble, Articles 3 and 6 of Federal Law of December 10, 2003 № 173-FZ (as amended on July 2, 2013) «On Currency Regulation and Currency Control», Article 6 of Federal Law of July 22, 2005 № 116-FZ (as amended on March 4, 2013) «On Special Economic Zones in the Russian Federation», Article 4 (2), Part 4 of Article 6, Article 18 of Federal Law of July 9, 1999 № 160-FZ (as amended on December 6, 2011) «On Foreign Investments in the Russian Federation», Article 1 of Federal Law of April 29, 2008 № 57-FZ (as amended on November 16, 2011) «On the Procedure for Foreign Investments in Business Companies of Strategic Importance for Providing National Defense and State Security».
The principle of state responsibility for national security and development of Russia's economy as «the heart of the matter» [Alekseev 2010: 79], guiding the functioning of foreign economic law, is not only fixed normatively, but also provided with a set of means for its implementation. Articles 32, 35, 38-40 of Federal Law № 164-FZ stipulate that the Russian Federation, in order to protect its national interests, shall introduce additional restrictions on foreign trade, both on imports and on exports.
Unfortunately, the implementation of this principle occurs not publicly; protecting the national security and stimulating the Russian economy, the state justifies its actions by reference to other grounds for their fulfillment. One example of implementation of this principle is the refusal of the Federal Antimonopoly Service (FAS) of the Russian Federation to the German conglomerate company Siemens to agree upon a deal to acquire a controlling stake in OJSC Silovye Mashiny. Officially, the reason for repeated refusals of the FAS (Siemens
had been trying to acquire a controlling stake in OJSC Silovye Mashiny for seven years) was a violation of the competitive balance in the power engineering market, but analysts noted that the decision to disagree upon the deal was made under pressure from the State Duma of the Russian Federation, whose deputies considered the deal dangerous for national security. But even in this case, the official version of the Federal Antimonopoly Service of the Russian Federation in its reasoning the refusal did not refer to the fact that the transfer to the control of a foreign conglomerate company over a Russian defense enterprise is contrary to the interests of Russia's national security.
National interests, economic security and currency control. The concept of security is closely related to the category of national interests. National security is designed, first of all, to guarantee the invulnerability of the vital interests of society and the state. Humanity has always faced the issues of ensuring international and national security. Globalization has introduced new phenomena in regulation of monetary and economic relations in the world in general and in a separate state in particular. Usually, the emphasis was placed on military security. However, at present it is clear that threats can come not only from nuclear and other weapons of mass destruction, but also from human activities themselves. Hence, genuine security in our time can be ensured only as a complex, covering all spheres of social life of the state, society and individuals.
The country's economic security as an integral part of national security is determined by the degree of self-sufficiency of economy and its effectiveness. The object of economic security is both the economic system taken as a whole and its constituent elements: production and non-productive funds, real estate, financial resources, economic structures and so on. The legal definition of the concept of economic security is contained in Federal Law of October 13, 1995 № 157-FZ «On State Regulation of Foreign Trade Activities». In accordance with Article 2 of the Law, economic security is a state of the economy that provides a sufficient level of social, political and defense existence and rapid development of the Russian Federation, invulnerability and independence of its economic interests in relation to possible external and internal threats and impacts.
This means that economic security is affected by various factors, not only purely economic. They, in turn, have a significant influence on geopolitical, social, environmental and other factors [Belykh 2003: 152-153]. The policy of economic security of the state should provide for a system of measures that blocks the causes of danger of all (or most) types. Measures to ensure economic security are a combination of methods, conscious actions aimed at preventing internal and external security threats. For this purpose, the state shall form its internal and external economic policy.
Monetary policy, currency regulation and control. The monetary policy plays an important part in regulating market economy. It is a set of measures implemented in international monetary and economic relations in accordance with the current and strategic plans of the country. The monetary policy of Russia is aimed at ensuring stability of its currency and domestic foreign exchange market as factors of development of the national economy and international economic cooperation is realized by including foreign currency denominated obligations in currency regulation. One of the means of implementing foreign exchange policy is currency regulation, which is understood as «a set of purposeful actions by the state to form or change existing public relations concerning currency values through the application of legal and economic measures of influence» [Tosunyan, Emelin 2004: 15].
Legal literature stipulates specific goals and objectives of currency regulation aimed at securing public interests: «The task of currency regulation is to conduct a reasonable monetary and credit policy in a market economy that serves as an instrument for achieving the state's macroeconomic goals» [Erpyleva 1998: 24]. V. A. Bublik identifies two main reasons for currency regulation: the operation of the monetary monopoly principle and the prevention of capital export from Russia [Bublik 1999: 194-195]. V. A. Belov points out that the main goal of monetary policy is ensuring stability of the national monetary unit and the monetary system [Belov 2001: 18]. According to N. N. Kosarenko, currency regulation is one of the forms of state influence on participants in foreign economic activity with a view to protecting the public interests of the state [Ko-sarenko 2006: 85].
We believe that currency regulation means activities of the state through the officials of the bodies of general competence and bodies of currency regulation to establish rules for conducting foreign exchange operations and the procedure for exercising currency control in order to ensure the implementation of public interests in the currency sphere. Direct administrative activities to ensure compliance with currency regulations are covered by the concept of currency control. Thus, currency regulation and currency control are independent, but interrelated components of the monetary policy of the state.
Currency regulation is carried out on the basis of currency legislation (some researchers use the term «currency law»). There exist various points of view on the definition of concepts «currency legislation» and «currency law». L. A. Lunts pays considerable attention to the problems of currency legislation, which he understands as an aggregate of legal norms aimed at regulating circulation of currency values within the given state, i. e. international means of payment [Lunts 2004: 142]. In opinion of N. V. Sapozhnikov, the subject of legal regulation of currency legislation, in addition to public relations of a public legal nature, are private-law relations between participants in foreign exchange operations when they are conducted in relation to the rights to objects of currency transactions [Alekseeva 2004: 20]. The focus on ensuring public interests determines the distinctive features of the norms of currency legislation.
L. A. Lunts was one of the first to note such features: «The norms of the Soviet currency legislation are mainly of an administrative and legal nature, but at the same time they have a civil law effect» [Lunts 2002: 330]. In opinion of A. B. Al'tshuler, the main feature of these norms is their imperative character [Al'tshuler 1984: 45]. V. A. Bublik characterizes currency regulation as the most vivid manifestation of diffusion of public methods in regulating private relations [Bublik 2000: 46]. The author notes that, by virtue of the principle of the state monetary monopoly, the legal regulation of international settlements is complex: measures of a civil-law character are combined with measures of currency regulation having an administrative nature [Bublik 1999: 67-68]. His position is shared by A. I. Muranov who em-
phasizes that in the currency regulation the use of currency values or the presence of the status of the subject of corresponding legal relation is given an independent legal significance, which results in restrictions, as a rule, of a public legal nature on the implementation of various material private-law relations with involvement of such values. This thesis leads to the assertion that currency regulation has neither a pronounced private legal nature nor a pure public legal nature [Muranov 2006: 13]. The complexity of currency legislation deserves attention. A. V. Emelin submits that while maintaining the basic value of financial and legal norms for the regulation of emerging currency relations, it is also necessary to use the norms of other branches of law - administrative, international, civil law and others [Tosunyan, Emelin 2004: 13]. N. V. Sapozhnikov believes that currency legislation is a complex branch of legislation, in which there are norms of various branches of law, mainly civil and administrative [Alek-seeva 2004].
The scope of the Federal Law «On Currency Regulation and Currency Control», which is limited in Article 2, covers two groups of relations:
relations between residents, non-residents, on the one hand, and bodies of currency regulation and control, agents of currency control, on the other hand;
property relations between residents regarding possession, use and disposal of currency values, between residents and non-residents, as well as between the latter regarding possession, use and disposal of currency values, the currency of the Russian Federation and domestic securities.
Property relations, in turn, are subdivided into relations between individuals and public entities in connection with execution of currency values, the currency of the Russian Federation and internal securities of public legal obligations (in particular, the payment of tax in foreign currency) and relations in which the parties act as legally equal subjects (for example, relations from the contract of sale with the condition of payment in foreign currency). Regulation of property relations is carried out by various methods.
The legal regulation (including civil-law regulation) is not possible within the framework of this study, that is why we will apply
the method of legal regulation singled out by S. S. Alekseev: legal personality as an expression of the general legal position of the parties; legal facts; the content of legal relations, more precisely, the features of emergence of rights and duties of their subjects; legal sanctions.
Typical grounds for emergence, change and termination of legal relations are the regulatory volitional acts of their participants and, first of all, contracts, unilateral transactions; the possibility of autonomy within the rules of the objective law of the parties establishing the content of the legal relation, which is expressed in the principles of disposability (the possibility, at its discretion, to dispose of the rights belonging to the subject) and a set of dispositive norms; the restorative nature of the measures of responsibility and the action (through courts and arbitration) of the procedure for its application.
The use of this set of characteristics to be regulated by the Federal Law «On Currency Regulation and Currency Control» with regard to property relations shows that the civil law method is used to influence relations between legally equal subjects (the second subgroup), taking into account the following specifics. First, in addition to the volitional acts of the participants, the grounds for terminating legal relations can be the act of a state body entailing the impossibility of execution (for example, imposing a ban on payments in the relevant currency under foreign economic contracts). However, this basis is not typical, it takes place along with proper execution, offset, compensation, innovation, etc. and its share compared, in particular, with proper execution is not high. Secondly, the majority of the norms of the Law on currency regulation are imperative. This also cannot serve as an argument in favor of non-application of the civil law method, it should be regarded as establishing the limits of the norms of objective law, within which the parties autonomously form the content of their legal relation. Thus, when concluding an agreement with a condition for payment in foreign currency, the subjects, at their discretion, formulate its terms and conditions, taking into account the requirements of currency legislation.
In accordance with Article 3 of the Federal Law «On Currency Regulation and Currency Control», the main principles of currency regulation and currency control in the Russian Federation are:
1) the priority of economic measures in implementation of public policy in the field of currency regulation;
2) exclusion of unjustified interference of the state and its bodies in currency transactions of residents and non-residents;
3) the unity of foreign and domestic monetary policy of the Russian Federation;
4) the unity of the system of currency regulation and currency control;
5) protection of rights and economic interests of residents and non-residents in the conduct of foreign exchange operations by the state.
It should be noted that two of the five principles (on excluding unjustified interference and ensuring protection of rights and economic interests) coincide in content with the main principles of civil legislation, as stipulated in Article 1 of the Civil Code of the Russian Federation.
Thus, property relations between legally equal subjects included in the scope of the Federal Law «On Currency Regulation and Currency Control» are of civil-law nature, since they have all the characteristics established by Articles 1 and 2 of the Civil Code of the Russian Federation (equality, autonomy of will, property independence). Consequently, the norms of the above-mentioned Federal Law aimed at streamlining such relations, by virtue of the requirements of Article 3 (2) of the RF Civil Code, should be attributed to civil law, which does not mean the attribution of this law as a whole to the sphere of private law. The goals set in the Federal Law «On Currency Regulation and Currency Control» (ensuring implementation of a single state currency policy, as well as stability of the currency of the Russian Federation and stability of its domestic foreign exchange market) are achieved by establishing currency restrictions and regulations concerning the procedure for exercising currency control. Depending on the specific historical period, characterized by a certain set of economic factors and the direction of the monetary policy of the state, the ratio of private and public elements of foreign exchange legislation is different. On the contrary, stabilization of the national currency rate, a favorable economic situation in the country, accumulation of currency in special funds lead to abolition of currency restrictions and liberalization of currency
regulation, which is focused on establishing the order of currency transactions, and not on bans on their implementation.
These factors determine complex (both private and public) nature of the Federal Law «On Currency Regulation and Currency Control». Moreover, even the public-law component of currency legislation has a civil-law effect. The proper performance of an obligation in foreign currency becomes possible only if the debtor complies with the requirements established by the currency legislation that are non-civil (administrative-legal) in their nature. In particular, to conduct payment in foreign currency, a person must conclude an agreement with an authorized bank, which is an agent of currency control (Article 14 (2, 3), Article 22 (3) of the Federal Law «On Currency Regulation and Currency Control»), and which will provide such a person with all the documents necessary for implementation of currency control (Articles 23, 24).
Thus, in the Russian Federation, national legal regulation of currency has a complex (both private and public) nature, since it is carried out on the basis of the Civil Code of the Russian Federation and currency legislation, which determines private legal and public legal means for regulating public relations in the monetary sphere. Some foreign scientists express a similar point of view. For example, V. F. Ebke regards currency law as a combination of public and private law norms [Ebke 1997: 111].
Currency market, cross-border transactions and the role of Central Bank
Currency market and currency regulation. Currency relations occupy a special place in the system of relations regulated by foreign economic law. No other group of relations combines both the relations on the circulation of objects of civil rights and the relation aimed to control such movement.
Currency regulation in Russia has been carried out since the 16th century, and at the end of the 19th century the ruble became a freely convertible currency and was highly valued among foreign investors. The First World War and the revolution of 1917 undermined the stability of the ruble, and with the introduction of an administrative monopoly on foreign eco-
nomic activity, the ruble turned into an unconvertible currency.
The system of currency regulation and control in Russia after the collapse of the Soviet Union was created from scratch, which resulted in a number of errors at the initial stage. The first law of Russia on currency regulation and currency control came into force on November 4, 1992. The law contained a large number of blanket and referential norms, so the main regulation was carried out by by-laws. Despite the adoption of the above law for the period from 1992 to 1998, the outflow of financial capital from Russia exceeded 150 billion US dollars1.
In order to liberalize the Russian currency market, the Law of the RSFSR of October 9, 1992 № 3615-1 «On Currency Regulation and Currency Control» was replaced by Federal Law «On Currency Regulation and Currency Control».
Article 2 of the Federal Law defines the scope of its regulation - these are the legal bases and principles of currency regulation and currency control in the Russian Federation, the powers of the bodies of currency regulation, as well as the rights and obligations of residents and non-residents with respect to possession, use and disposal of currency values, the rights and obligations of non-residents with respect to the possession, use and disposal of the currency of the Russian Federation and domestic securities, the rights and obligations of the authorities of the shaft and foreign exchange control agents.
The sphere of regulation of the law is public relations, therefore, currency relations are relations for managing the activities of foreign economic activity participants in the domestic foreign exchange market of Russia [Bublik 2000: 303], relations to monitor compliance with the requirements of currency legislation, as well as relations arising in connection with ownership, use and disposal of foreign economic activity by the currency of the Russian Federation, domestic securities and currency values.
The Federal Law «On Currency Regulation and Currency Control», in contrast to the first law, contains a significant number of direct action standards, while the first law initially laid down the model for a gradual removal of ex-
1 Ekonomika i zhizn'. 1998. № 37.
cess (and, taking into account the outflow of capital from Russia, inefficient) barriers:
1) since June 15, 2004 individual permits for currency transactions have been cancelled, residents have the right to open bank accounts outside Russia without any restrictions, legal entities residents have the right to make settlements on foreign exchange transactions using funds held in accounts with foreign banks;
2) since July 1, 2006, Article 7 and Parts 3-6 of Article 11 of the Federal Law «On Currency Regulation and Currency Control» expired, which granted to the Government of the Russian Federation and the Bank of Russia (the Central Bank) the right to regulate capital transactions by establishing a requirement to reserve or to use a special account;
3) since January 1, 2007, the right of the Bank of Russia to abolish the requirement to use a special account for currency transactions related to obtaining loans as well as for the purchase and sale of securities, as well as the requirement to obligate the sale of part of the currency proceeds in the domestic foreign exchange market.
The Federal Law «On Currency Regulation and Currency Control», despite significant liberalization of domestic foreign exchange market, retained the requirements for implementation of all settlement operations for exportimport transactions through authorized banks using the passport of a foreign trade transaction; prohibition of currency transactions between residents (Article 9); quantitative restriction of the movement of currency and currency values by residents and non-residents (Article 15); requirement of repatriation by residents of foreign currency and the currency of the Russian Federation (Article 19).
The Federal Law «On Currency Regulation and Currency Control» distinguishes the following types of currency transactions:
1) the resident purchases from the resident and alienates the resident currency values or uses currency values as a means of payment. Such currency transactions are prohibited, except for cases directly stipulated by law;
2) a resident purchases from a non-resident or a non-resident purchases from a resident or a resident alienates in favor of a non-resident or a non-resident alienates foreign currency, external securities, the currency of the Russian Federation and domestic securities for le-
gal reasons in favor of the resident. A currency transaction is also the use of currency values, currencies of the Russian Federation and domestic securities as a means of payment between a resident and a non-resident;
3) a non-resident purchases from a non-resident and a non-resident alienates non-resident currency values, the currency of the Russian Federation and domestic securities on legal grounds. A currency transaction is also the use of currency values, the currency of the Russian Federation and domestic securities as a means of payment between two non-residents.
The law also establishes a system of control measures for currency transactions. Currency control is a set of normatively fixed administrative and organizational measures implemented by specially authorized state bodies or other organizations aimed at implementing the procedure for making foreign exchange transactions and transactions in terms of currency restrictions, as well as measures to identify, prevent and suppress violations of this order. The main purpose of currency control is to ensure compliance with the currency legislation of the Russian Federation. Currency control in the Russian Federation is exercised by the Government of the Russian Federation, foreign exchange control bodies and agents. The Government of the Russian Federation ensures coordination of activities in the field of currency control of federal executive bodies that are currency control bodies, as well as their interaction with the Central Bank. The reform of the legislation on currency regulation and control, implemented through the Federal Law «On Currency Regulation and Currency Control», is by far the best reform of modern Russia, both with regard to organization and the legal model used. In terms of significance for the Russian economy, this reform can be compared with the monetary reform of S. Yu. Witte carried out in 1897. Due to this reform Russia received a stable currency, secured by gold. This contributed to an increased investment activity and increased inflow of foreign capital.
The role of the Central Bank and cross-border currency transactions. It should be noted that the reform of currency regulation continues to the present, and changes are made not only directly to the Federal Law «On Currency Regulation and Currency Control», but also to other regulatory acts. For example, the
Federal Law of November 12, 2012 № 194-FZ «On Amendments to Articles 14.7 and 14.10 of the Code of Administrative Offenses of the Russian Federation», Part 1 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation have introduced such changes that have expanded the concept of an illegal currency transaction. In particular, the illegal currency transaction is recognized as:
the purchase and sale of foreign currency and checks (including traveler's checks), the nominal value of which is indicated in foreign currency, bypassing authorized banks;
currency transaction, settlements on which are made, bypassing accounts in authorized banks or accounts (deposits) in banks located outside the territory of Russia, in cases not provided for by the currency legislation of the Russian Federation;
currency transaction, settlements on which are made from funds credited to accounts (deposits) in banks located outside the territory of the Russian Federation, in cases not provided for by the currency legislation of the Russian Federation.
The changes became effective on February 13, 2013 and caused mixed reactions of society as a whole and the legal community. Special indignation in the society was caused by the recognition of an illegal currency transaction; settlements were made at the expense of funds credited to accounts (deposits) with banks located outside the territory of the Russian Federation in cases not provided for by the currency legislation of the Russian Federation. This means that the income a person wants to transfer to his foreign account must pass through a Russian bank (after that, money can be freely transferred to any accounts). We are talking about income from leasing and selling real estate abroad, fees, salaries for Russians working and living abroad (from a practical point of view it is interesting to discuss the following question: does this concern the requirement of Russians who have a residence permit abroad?), income from securities and the sale of mutual funds and even interest on deposits and so on. Interest should indeed first be credited to an account in a Russian bank. The transfer of funds to foreign accounts via Russian banks is necessary for monitoring the movement of capital, currency control, stimulation of opening accounts in the branches of
Russian banks, combating money laundering and evasion of taxes.
An exception would be, for example, the crediting of cash to a foreign account, although it would be necessary to explain the origin of a large sum. Another exception is loans received from residents of OECD or FATF countries for a period of more than two years. Nevertheless, it is necessary to inform the tax authorities about the account abroad (otherwise the Russian bank will not transfer money) and pay the bank commission. There is a possibility of occurrence of tax risks because of the agreements on avoidance of double taxation with the majority of countries. According to them, labor income and income from the lease or sale of real estate are taxed at the place of their receipt. If the tax is paid abroad, you can transfer money to Russia. It is possible to learn about the opening or existence of residents' accounts abroad through the exchange of information on double taxation avoidance agreements: through requests to banks by client groups (Cyprus and Switzerland have announced their readiness to provide information). The tax authorities have the right to make a request to the competent authorities of foreign countries; however, it is possible to perform checks only with the sending of such requests because of the complexity and duration of these procedures (information from foreign banks can be obtained only by a court decision).
The continuing outflow of capital abroad (according to the Central Bank, the net outflow of capital from the Russian Federation for the first half of 2014 reached 74.6 billion dollars: in the 1st quarter it amounted to 48.8 billion dollars, in the 2nd quarter - 25.8 billion dollars. In 2013, capital outflow reached 62.7 billion dollars, in 2012 - 56.8 billion dollars. In comparison, in 2008 the outflow amounted to 133.6 billion dollars) makes the Bank of Russia intensify measures to combat the «dubious operations» that play a key role in capital flight abroad. The Bank of Russia will unequivocally attribute to doubtful operations on advance payment of the goods by Russian companies to foreign counterparts (prepayment practice is a standard for foreign trade turnover and it shows that about 90 % of import contracts are paid in advance at a rate of 30 %). At the same time, the most extreme measure for the bank's involvement in questionable
operations is the revocation of the license. Since early 2014, the Central Bank has revoked licenses of 63 banks (this is twice as much as for the whole of 2013). «Gray» schemes for «advancing future deliveries» imply that the advance payment for the goods is made by a Russian company to a foreign counterparty, but the goods themselves are not imported. As a rule, such contracts of purchase and sale of goods on a prepayment basis indicate a long term of performance of obligations by the counterparty (5-10 years). And after this period, probably, neither the company itself nor the counterparty will be existent anymore.
Also, the «one-day firms» play an important role in withdrawal of capital. Since mid-2013, the Central Bank has started to conduct a nonvoting list of Russian companies-participants in foreign trade activities who are suspected of illegally withdrawing funds abroad and legalizing (laundering) proceeds from crime. The residents included in it are divided into two groups: 1) companies, in each of which foreign contractors owe 80 % of the amount of payments under contracts; 2) enterprises, the debt of non-residents to each of which is 20-80 % of the total amount of contracts.
Currently, all foreign trade operations in the Russian Federation are subject to excessive public and legal regulation: authorized banks require the creation of an insurance deposit by the importer; the transaction must be closed within 90 days, etc. In other countries, in similar cases, other schemes are applied: all payments abroad are taxed with subsequent reimbursement upon confirmation of the actual transaction (withholding tax).
In addition, in 2013 the Central Bank obliged banks to ensure increased attention to transactions involving Belarusian and Kazakh counterparties, and to send information on such transactions to the Federal Financial Monitoring Service and the management of the Bank of Russia (in 2012 fictitious import schemes enabled to legalize 15 billion dollars through Belarus, and 10 billion dollars through Kazakhstan). The Federal Tax Service, the Ministry of Internal Affairs and the Central Bank have been working since 2013 to create a common blacklist, which will include companies involved in illegal financial transactions, as well as to create a special structure within the Customs Union that will monitor compliance with anti-laundering legislation.
The Central Bank and the Government of the Russian Federation will continue the legislative work on introducing appropriate amendments to the creation of an alternative interbank settlement system similar to SWIFT. At the end of August 2014, the Central Bank of Russia and a number of ministries prepared a draft law on the creation of a SWIFT analog in Russia, which provides for a possibility to create an alternative to SWIFT, at a minimum, to transmit information concerning payments within the country, which will simplify and accelerate payments inside the country, and will partially secure the internal payment system; options for creating an analogue based on existing electronic settlement systems are discussed, and the Bank of Russia channels that allow the exchange of financial messages can also be used. Currently, banks can solve the problem of disconnecting from SWIFT by exchanging messages through a client bank (Internet client) by concluding bilateral banking contracts. Another option is work through TELEX. It is still necessary to create a local system of interbank settlements with the participation of the Central Bank and SWIFT (based on the experience of India).
On October 13, 2014, the Bank of Russia and the People's Bank of China concluded an agreement on currency swaps for three years. The volume of the swap line is 150 billion yuan. The conclusion of a swap agreement in national currencies between the banks will promote development of bilateral economic relations by expanding the possibilities for financing trade and direct investment, as well as a wider use of Russian rubles and Chinese yuan in international trade and investment activities. It is interesting to note that world companies in 2014 sharply increased the use of yuan in their trading calculations; and 22 % of these companies have already switched over to the Chinese currency (for example, companies in the countries of the EU, Hong Kong, the USA). The development of agreements on the refusal of settlements in dollars and the transfer to the calculations in RMB in mutual trade was initiated by Pakistan, Iran, Argentina and other countries. At the same time, at a special meeting of the Government of Russia, under the leadership of First Deputy Prime Minister I. Shuvalov, the issue of developing a decision on the refusal to use the dollar in export operations was discussed. In particular, the result of this discussion was the fact that in September 2014 several oil tankers of Gazprom-
neft from the Novoportovskoye field in Yamal (Yamalo-Nenets Autonomous District) were sold to North-Western Europe for rubles. Given a combination of favorable circumstances, it can be assumed that the ruble and yuan may be used as an alternative reserve currency to the dollar, as the presidents of the Russian Federation and the PRC have repeatedly stated.
It is interesting that the experience of the People's Republic of China in creating a free trade zone in Yangshan port is evidence of its use, including as a platform for the transition to free conversion of Yuan. This free trade zone
is rightly called the zone of economic experiment. Consequently, we think that it is inadmissible to treat territories with a special economic status exclusively as an instrument for attracting investments - it is a full-fledged tool for conducting experimental economic reforms for their evaluation and developing optimal methods. It is possible that if such experimental zones had been created in the USSR in the 1980s, disintegration of the Soviet Union and transition to a market economy would have passed without such catastrophic social and economic consequences.
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Anna Gubareva - candidate of juridical sciences, associate professor of the Business law department, Ural State Law University. 620137, Russian Federation, Yekaterinburg, Komsomol'skaya str., 21. E-mail: [email protected].
Stanislav Stepkin - candidate of juridical sciences, associate professor of the Civil disciplines department, Russian State Social University. 129226, Russian Federation, Moscow, Wilhelm Pick str., 4, building 1. E-mail: [email protected].
Валютное регулирование в российской банковской системе
В статье констатируется, что либерализация валютного регулирования в России 1990-2000-х гг. была частичной. Сегодня сохраняются существенные ограничения, связанные с требованиями законодательства к порядку совершения валютных операций. «Запретительный» характер регулирования мешает трансграничной деятельности российского бизнеса. Механизмы контроля не позволяют достигать макроэкономических целей по обеспечению устойчивости рубля. Авторы утверждают, что назрела необходимость проведения реформ в указанной сфере.
Денежно-кредитная политика играет важную роль в регулировании рыночной экономики. Это комплекс мер, осуществляемых в сфере международных валютно-экономиче-ских отношений в соответствии с текущими и стратегическими задачами страны. Денежно-кредитная политика России, направленная на обеспечение стабильности валюты Российской Федерации и ее внутреннего валютного рынка, реализуется путем включения обязательств, номинированных в иностранной валюте, в сферу валютного регулирования. Валютное регулирование понимается как «совокупность целенаправленных действий государства по созданию или изменению существующих общественных отношений по поводу валютных ценностей посредством применения юридических и экономических мер воздействия».
Отмечается, что принцип ответственности государства за национальную безопасность и развитие национальной экономики является уникальным для российской правовой системы. Анализируется, в какой степени принципы правовой безопасности могут влиять на правовой режим валютного контроля в российской банковской системе.
Ключевые слова: валютное регулирование, валютные операции, стабильность рубля, банковская система
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Анна Викторовна Губарева - кандидат юридических наук, доцент кафедры предпринимательского права Уральского государственного юридического университета. 620137, Российская Федерация, Екатеринбург, ул. Комсомольская, д. 21. E-mail: [email protected].
Станислав Павлович Степкин - кандидат юридических наук, доцент кафедры гражданско-правовых дисциплин Российского государственного социального университета. 129226, Российская Федерация, Москва, ул. Вильгельма Пика, д. 4, строение 1. E-mail: [email protected].
Дата поступления в редакцию / Received: 30.01.2019
Дата принятия решения об опубликовании / Accepted: 28.04.2019
