15.03.202227.05.2017

Chapter 46 "Settlements" of the Civil Code of the Russian Federation is devoted to the forms of non-cash payments and the procedure for their implementation.

For settlements between legal entities, as well as with the participation of citizens, when the parties carry out entrepreneurial activities, as general rule a non-cash settlement procedure was established (clause 2 of article 861 of the Civil Code of the Russian Federation).

Carrying out cashless payments has the following general principles arising from the nature of this method of payment:

First. Making payments mainly using bank accounts. Other, as indicated by paragraph 3 of Art. 861 of the Civil Code of the Russian Federation, may follow from the law or be due to the form of payment used.

Second. Implementation of settlements, as a rule, by order of the payer. A non-acceptance procedure for debiting funds from the payer's account is possible, when, by virtue of the agreement, the payment is made without the consent of the payer (for example, the bank debits the loan amount from the borrower's account).

Third. Security of payment, i.e. availability on the payer's account of sufficient Money to make a payment. The agreement between the bank and the client may provide for “account crediting”, when, in the absence of funds necessary for making a payment on the account, the bank automatically credits the client for the required amount within the limit.

Fourth. The use of special settlement documents that have the established form, details. General requirements for the execution of settlement documents in the implementation of cashless payments are contained in special regulations ("Regulations on the transfer of funds", etc.).

Fifth. Freedom to choose the form of non-cash payments. This provision stems from general principle freedom of contract (Article 421 of the Civil Code of the Russian Federation), as well as directly from the norm of paragraph 2 of Art. 862 of the Civil Code of the Russian Federation, according to which the parties under the contract have the right to choose any of the forms of payment.

The Civil Code provides for the following forms of non-cash payments: payment orders; by letter of credit; checks; for collection (Article 862 of the Civil Code).

In addition, the use of other forms provided for by law, banking rules and business practices is not excluded.

The implementation of a non-cash payment is a chain of actions of various subjects of settlement obligations, during which funds are transferred from the payer to the recipient, to his bank account.

The terms for making cashless payments are established by law and are the same for all forms of cashless payments and are two business days if the payment is made within the territory of the subject of the Russian Federation, and five business days if the payment is made within the territory of the Russian Federation.

Article 80 of Federal Law No. 86-FZ of July 10, 2002 “On the Central Bank of the Russian Federation (Bank of Russia)” is general requirement to the timing of the settlements. Along with them, the current legislation establishes the terms for the transfer and crediting of funds, i.e. terms of fulfillment by banks of obligations related to settlements. So, in accordance with Art. 849 of the Civil Code of the Russian Federation, the bank is obliged, by order of the client, to issue or transfer funds from the client's account no later than the day following the day the bank receives the relevant payment document, unless otherwise provided by law, banking rules or bank account agreement.

A similar provision is contained in the Federal Law of December 2, 1990 No. 395-1 “On Banks and Banking Activity”.

On June 9, 2012, the Rules for Executing Funds Transfers came into force, which governs Bank of Russia Regulation No. 383-P dated 19 June 2012 “On the Rules for Executing Funds Transfers”. The regulation applies to all forms and types of non-cash payments, including checks and letters of credit.

The regulation establishes new rules for the transfer of funds by the CBR, credit institutions in Russia in rubles. This is due to the adoption of the Law on the National Payment System. The new provision applies to all clients of credit institutions (both individuals and legal entities). It applies to money transfers involving Vnesheconombank.

Banks transfer funds through bank accounts and without opening the latter on the basis of transfer orders. The following forms of non-cash payments are provided: by payment orders; by letter of credit; collection orders; checks; transfer of funds at the request of the recipient - direct debit (previously there were payment requests); transfer of electronic money (previously it was not provided).

In addition, international acts of a recommendatory nature are important in this area:

Uniform Customs and Practice for Documentary Letters of Credit, approved. International Chamber of Commerce, 1993, Publication No. 500;

Unified rules for collection, approved. International Chamber of Commerce, 1995, Publication No. 522.

T.A. GUSEVA, M.N. DRAKINA

1. The procedure for making cash settlements
Settlements with the participation of citizens that are not related to their entrepreneurial activities can be made in cash without limiting the amount or by bank transfer (clause 1 of the Civil Code of the Russian Federation) - the law does not establish any restrictions on such calculations.
However, the procedure for cash settlements for legal entities and individual entrepreneurs is regulated by law very strictly.
All organizations and individual entrepreneurs are required to keep free cash in banking institutions.
Settlements between legal entities, as well as settlements with the participation of citizens related to their entrepreneurial activities, are made in a non-cash manner. Settlements between them can also be made in cash, unless otherwise provided by law (clause 2, article 861 of the Civil Code of the Russian Federation).
2. Cashless payments
At present, the procedure for making cashless payments is regulated by the Regulation on cashless payments in the Russian Federation N 2-P, approved by the Central Bank of the Russian Federation on October 3, 2002 (as amended on March 3, 2003) (hereinafter referred to as the Regulation on cashless payments).
This Regulation regulates non-cash settlements between legal entities, individual entrepreneurs in the currency of the Russian Federation (i.e. in rubles) and on its territory and does not apply to the procedure for making non-cash payments involving individuals.
Cashless payments are made through credit institutions (branches) and / or the Bank of Russia on accounts (hereinafter referred to as banks) opened on the basis of a bank account agreement or a correspondent account (sub-account) agreement, unless otherwise established by law and is not stipulated by the form of payment used.
Forms of non-cash payments
a) settlements by payment orders;
b) settlements under a letter of credit;
c) payments by checks;
d) collection settlements.
Forms of non-cash payments are chosen by bank customers independently and are provided for in agreements concluded by them with their counterparties (hereinafter referred to as the main agreement). Banks do not interfere in the contractual relationships of customers. Mutual claims on settlements between the payer and the recipient of funds, except for those arising through the fault of banks, are resolved in the manner prescribed by law without the participation of banks.
When making cashless payments, the following settlement documents are used:
a) payment orders;
b) letters of credit;
c) checks;
d) payment requests;
e) collection orders.
Settlements by payment orders
A payment order is an order of the account holder (payer) to the bank serving him, drawn up by a settlement document, to transfer a certain amount of money to the account of the recipient of funds opened in this or another bank. The payment order is executed by the bank within the period provided for by law, or within a shorter period established by the bank account agreement or determined by the business practices used in banking practice.
Payment orders can be made:
a) transfer of funds for goods supplied, work performed, services rendered;
b) transfer of funds to the budgets of all levels and extra-budgetary funds;
c) transfer of funds for the purpose of repayment/placement of credits (loans)/deposits and payment of interest on them;
d) transfer of funds for other purposes provided for by law or the contract.
In accordance with the terms of the main agreement, payment orders can be used for advance payment for goods, works, services or for making periodic payments.
The payment order is drawn up on the form 0401060.
Payment orders are accepted by the bank regardless of the availability of funds in the payer's account.
The possibilities of using payment orders in settlements are diverse. With their help, settlements are made both for commodity and non-commodity transactions. In settlements for goods and services, payment orders are used when making payments for goods received and services rendered, for payments in advance payment and services, for repayment of accounts payable for commodity transactions; when making payments for goods and services by court and arbitration decisions; on rent for premises; payments to transport, communal, household enterprises for maintenance, etc.
In settlements for non-commodity transactions, payment orders are used to make payments to the budget and extra-budgetary funds; repayment of bank loans and interest on loans; contributions to statutory funds when establishing JSCs, partnerships, etc.; acquisition of shares, bonds, certificates of deposit, bank bills; payment of penalties, fines, penalties, etc.
Settlements using payment orders are the most common form of non-cash payments in practice, especially since modern banking technologies make it possible to make electronic payments "to the same day". The main distinguishing feature of this form of cashless payments is that the payment initiative comes from the payer.
When making payments by payment orders, the bank that accepted the order for execution undertakes not only to write off the required amount from the client's account, but also to ensure its transfer to the recipient's account. Those. the payment order is considered to be duly executed by the bank when the funds are credited to the beneficiary's account. The Bank of Russia sets the terms for non-cash payments. The total period of non-cash settlements should not exceed 2 business days within the subject of the Russian Federation, 5 business days within the Russian Federation.
Presentation of a payment order to the bank - an action performed by the client in pursuance of the bank account agreement.
The Civil Code of the Russian Federation (clause 2) grants the right to the bank that accepted the order, at its discretion, with the greatest benefit and economy, to determine the settlement structure, including deciding whether the order will be executed by the bank independently or with the involvement of other banks.
In paragraph 3 of Art. 865 of the Civil Code of the Russian Federation, the obligation of the bank to immediately inform the client about the execution of the order is legally fixed.
The most significant rules concerning the liability of banks for non-execution or improper execution of an order are contained in clause 2 of the Civil Code. This rule allows, in the event of a dispute, to apply liability directly to the bank that committed the violation. Procedurally, this can be implemented by involving the banks involved in the payment, when considering a dispute in court as co-defendants. In this case, the court may lay responsibility directly on the offender, even if he is not a party to the contract with the payer. Responsibility can be assigned taking into account the fault of each of the banks.
Settlements under letters of credit
A letter of credit is a conditional monetary obligation accepted by a bank (hereinafter referred to as the issuing bank) on behalf of the payer, to make payments in favor of the recipient of funds upon presentation by the latter of documents corresponding to the terms of the letter of credit, or to authorize another bank (hereinafter referred to as the executing bank) to make such payments.
Banks can open the following types of letters of credit:
- covered (deposited) and uncovered (guaranteed);
- revocable and irrevocable (can be confirmed).
When opening a covered (deposited) letter of credit, the issuing bank transfers at the expense of the payer's funds or the credit provided to him the amount of the letter of credit (coverage) at the disposal of the executing bank for the entire period of the letter of credit. When opening an uncovered (guaranteed) letter of credit, the issuing bank grants the executing bank the right to write off funds from its correspondent account within the amount of the letter of credit. The procedure for writing off funds from the correspondent account of the issuing bank under a guaranteed letter of credit is determined by agreement between the banks.
A revocable is a letter of credit that can be changed or canceled by the issuing bank on the basis of a written order of the payer without prior agreement with the recipient of funds and without any obligations of the issuing bank to the recipient of funds after the withdrawal of the letter of credit. Irrevocable is a letter of credit that can be canceled only with the consent of the recipient of funds. At the request of the issuing bank, the nominated bank may confirm an irrevocable letter of credit (confirmed letter of credit). An irrevocable letter of credit confirmed by the nominated bank cannot be changed or canceled without the consent of the nominated bank. The procedure for providing confirmation on an irrevocable confirmed letter of credit is determined by agreement between the banks.
The letter of credit is intended for settlements with one recipient of funds.
The terms of the letter of credit may provide for the acceptance of a person authorized by the payer.
The recipient of funds may refuse to use the letter of credit before its expiration, if the possibility of such refusal is provided for by the terms of the letter of credit.
The share of the letter of credit in the calculations is much more modest compared to bank transfer and collection. However, it is the letter of credit, in particular, that most fully ensures the timely receipt of funds from the buyer, that is, it meets the interests of the supplier to the maximum when it comes to obligations arising from the supply contract. The considered form of payment is indispensable, first of all, in the case when the buyer and seller make a one-time transaction and have limited information about the financial condition, solvency and good faith of the counterparty in the transaction. This is a form of payment, which is a promise of the bank to pay the supplier of goods (seller) at the expense of the buyer a certain amount in the agreed currency, if the seller submits the documents stipulated in the letter of credit within the prescribed period. Through the bank, which acts here as an intermediary between the seller and the buyer, after a series of transactions, payment is made: against the presentation of the relevant documents, the seller receives from the bank the amount stipulated in the letter of credit. Thanks to a letter of credit, the seller does not depend on the solvency of the buyer and his willingness to pay, and immediately after the shipment of the goods, he can receive money for him. Naturally, it is in the interests of the supplier (seller) that the letter of credit be covered and irrevocable. As part of the letter of credit form of payment for each of the parties, there are guarantees for the fulfillment of the obligation - the seller is sure that the amount due to him for the delivery of the goods has already been received by the executing bank; the buyer pays for the delivered goods only after the goods are actually delivered to his address.
A check is a security containing an unconditional order of the drawer of the check to the bank to pay the amount specified in it to the holder of the check. The issuer of a check is a legal entity that has funds in the bank, which it has the right to dispose of by issuing checks, the holder of a check is the legal entity in whose favor the check is issued, the payer is the bank in which the funds of the drawer are located.
The procedure and conditions for the use of checks in the payment turnover are regulated by part two of the Civil Code of the Russian Federation, and in the part not regulated by it, by other laws and banking rules established in accordance with them.
The check is paid by the payer at the expense of the drawer's funds.
The drawer is not entitled to withdraw the check before the expiration of the established period for presenting it for payment.
Presenting a check to the bank servicing the holder of the check to receive payment is considered to be presenting the check for payment.
The payer of the check is obliged to verify by all means available to him the authenticity of the check. The procedure for imposing losses incurred as a result of payment by the payer of a false, stolen or lost check is regulated by law.
Settlements for collection
Collection settlements are a banking operation through which the bank (hereinafter referred to as the issuing bank), on behalf of and at the expense of the client, on the basis of settlement documents, performs actions to receive payment from the payer. For collection settlements, the issuing bank has the right to involve another bank (hereinafter referred to as the executing bank).
Settlements for collection are carried out on the basis of payment requests, the payment of which can be made at the order of the payer (with acceptance) or without his order (without acceptance), and collection orders, the payment of which is made without the order of the payer (in an indisputable manner).
Payment claims and collection orders are submitted by the recipient of funds (collector) to the payer's account through the bank servicing the recipient of funds (collector).
Settlements by payment claims
A payment request is a settlement document containing a requirement of the creditor (recipient of funds) under the main agreement to the debtor (payer) to pay a certain amount of money through the bank.
Payment requests are applied in settlements for goods supplied, work performed, services rendered, as well as in other cases provided for by the main contract.
Settlements by means of payment requests can be carried out with or without the prior acceptance of the payer.
Without the payer's acceptance, settlements by payment claims are carried out in the following cases:
1) established by the legislation;
2) stipulated by the parties under the main agreement, provided that the bank servicing the payer is granted the right to debit funds from the payer's account without his order.
Settlements using payment requests are also a fairly common form of non-cash payments in business. The defining feature of this form of non-cash payments is that the initiative in making the payment comes from the recipient of the payment, and not from the party obliged to make a cash settlement for already shipped (discharged) goods (works, services). To apply this form of payment, the parties to a transaction on the acquisition of goods (works, services) must provide for the possibility of its use in the contract.
The procedure for using settlements by payment requests includes the following steps: 1) the supplier (seller) of goods (works, services) after their shipment (vacation) draws up in the prescribed manner a document called a payment request and submits it to the servicing bank for collection - a special banking operation . The payment request may be accompanied by commodity-transport or other documents confirming the shipment (release) of goods (performance of work, provision of services), or they are sent directly to the payer, indicating the date of dispatch in the payment order; 2) the bank serving the recipient accepts a payment request for collection, that is, to perform an operation to receive from the payer the funds due to the recipient and credit them to the account of the latter. The collection is carried out by sending the payment request and the documents attached to it by the bank serving the recipient to the bank serving the payer; 3) the payer's bank, on the basis of the documents received and in the absence of a justified refusal of the payer to make the payment (the so-called refusal to accept the demand), transfers funds from the payer's account to the address of the recipient.
The use of payment requests as a form of non-cash payments in business activities allows you to organize an efficient and effective system of payments for shipped goods, work performed and services rendered. Their use is especially important for business entities with a large consumer network of wholesale supplies.
Settlements by collection orders
A collection order is a settlement document, on the basis of which funds are debited from the payers' accounts in an indisputable manner.
Collection orders apply:
1) in cases where an indisputable procedure for collecting funds is established by law, including for the collection of funds by bodies performing control functions;
2) for recovery under executive documents;
3) in cases stipulated by the parties under the main agreement, provided that the bank serving the payer is granted the right to debit funds from the payer's account without his order.
As you can see, the legislator connects the possibility of actually using the mechanism for direct or undisputed debiting of funds from the payer's account, if such a mechanism is laid down in the main contract, with the obligatory existence of one more condition - the provision by the payer to the servicing bank (i.e., the bank in which the corresponding settlement account is opened) payer's account) the right to carry out direct or undisputed debiting of funds from the account. Such a right, as a rule, is exercised in practice by concluding an additional agreement to the bank account agreement opened to the payer. The payer is obliged to provide the servicing bank with information about the creditor (recipient of funds) who has the right to issue payment requests for debiting funds without acceptance, or a collection order, the name of the goods, works or services for which payments will be made, as well as about the main contract (date, number and corresponding clause providing for the right of direct debiting).
The absence of a condition on direct debiting of funds or on indisputable debiting in a bank account agreement or an additional agreement to a bank account agreement, as well as the absence of information about the creditor (recipient of funds) and other above information is the basis for the bank to refuse to pay the payment request without acceptance or collection instructions.
Considering the issues of non-cash payments, it should be mentioned that from July 1, 2003, the Regulation of the Bank of Russia N 222-P of April 1, 2003 "On the procedure for making non-cash payments by individuals in the Russian Federation" (hereinafter - the Regulation) came into force. This document was issued in development of the Regulations on non-cash payments and regulates the features of their commission in cases where the payer is an individual. Now citizens have the opportunity to use almost any form of cashless payments. However, we are talking about payments that are not related to the implementation of entrepreneurial activities by citizens. An individual has the right to open current accounts in Russian banks and make payments using all the provided types of non-cash payments. To open an account, you must submit an identity document, a bank card with a sample signature. Within the framework of the provision under consideration, a citizen has the opportunity to independently draw up settlement documents in accordance with established forms or entrust this to the bank in which a current account is opened. It is possible to dispose of funds on a current account by a representative of an individual by proxy. We dare to suggest that the newly introduced procedure for opening current accounts for citizens-non-entrepreneurs will not be in demand in the near future in large numbers, since there is and is successfully used for a long time a well-established mechanism for the use by individuals of the “On Demand” account (deposit) mode, which allows for non-cash transactions, not related to business activities.
When analyzing the forms of non-cash payments used in banking practice, one cannot fail to mention payments using plastic cards.
The introduction of bank cards as one of the main means of non-cash payments is the most important task of the "technological revolution" of banking. This means of payment, having many undoubted advantages, provides both cardholders and credit institutions involved in their issue and maintenance with a lot of advantages. For cardholders, this is convenience, reliability, practicality, time saving, no need to carry large amounts of cash. For credit institutions - increasing competitiveness and prestige, the availability of payment guarantees, reducing the costs of manufacturing, accounting and processing paper money, minimal time costs and savings in human labor. This is only an incomplete list of the qualities of plastic money that led to their recognition in the world market. The international "plastic" business rests on "three pillars" - VISA International, EuroCard / MasterCard and American Express - the largest international organizations that have united a huge number of credit organizations under their roofs different countries. Since 1990, when the largest international company VISA International began to accept Russian banks into its ranks, the opportunity to evaluate all the advantages of payment cards has also appeared in Russia. Regulations "On the Procedure for Issuing Credit Institutions bank cards and making settlements on transactions made with their use", approved by the Central Bank of the Russian Federation of 09.04.98 N 23-P, regulates operations related to the circulation of bank cards in the Russian Federation. Successful experience in making settlements using them made it possible to verify the convenience and practicality of plastic money.

2. Regulatory regulation of non-cash payments

Chapter 46 "Settlements" of the Civil Code of the Russian Federation is devoted to the forms of non-cash payments and the procedure for their implementation.

For settlements between legal entities, as well as with the participation of citizens, when the parties carry out entrepreneurial activities, a non-cash settlement procedure is established as a general rule (clause 2 of article 861 of the Civil Code of the Russian Federation).

Carrying out cashless payments has the following general principles arising from the nature of this method of payment:

Third. Security of payment, i.e. the presence of sufficient funds on the payer's account to make the payment. The agreement between the bank and the client may provide for “account crediting”, when, in the absence of funds necessary for making a payment on the account, the bank automatically credits the client for the required amount within the limit.

Fifth. Freedom to choose the form of non-cash payments. This provision follows from the general principle of freedom of contract (Article 421 of the Civil Code of the Russian Federation), as well as directly from the norm of clause 2 of Art. 862 of the Civil Code of the Russian Federation, according to which the parties under the contract have the right to choose any of the forms of payment.

The Civil Code provides for the following forms of non-cash payments: payment orders; by letter of credit; checks; for collection (Article 862 of the Civil Code).

In addition, the use of other forms provided for by law, banking rules and business practices is not excluded.

The implementation of a non-cash payment is a chain of actions of various subjects of settlement obligations, during which funds are transferred from the payer to the recipient, to his bank account.

Article 80 of Federal Law No. 86-FZ of July 10, 2002 “On the Central Bank of the Russian Federation (Bank of Russia)” is a general requirement for the timing of settlements. Along with them, the current legislation establishes the terms for the transfer and crediting of funds, i.e. terms of fulfillment by banks of obligations related to settlements. So, in accordance with Art. 849 of the Civil Code of the Russian Federation, the bank is obliged, by order of the client, to issue or transfer funds from the client's account no later than the day following the day the bank receives the relevant payment document, unless otherwise provided by law, banking rules or bank account agreement.

A similar provision is contained in the Federal Law of December 2, 1990 No. 395-1 “On Banks and Banking Activity”.

In addition, international acts of a recommendatory nature are important in this area:

Uniform Customs and Practice for Documentary Letters of Credit, approved. International Chamber of Commerce, 1993, Publication No. 500;

Unified rules for collection, approved. International Chamber of Commerce, 1995, Publication No. 522.

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In the 90s of the 20th century in Russia there was a transition from the administrative-command system of economic management to market relations, which necessitated the creation of a new payment system based on a two-tier system of banks. This led to the creation of independent commercial banks, the division of financial resources of economic market entities, the formation of a system of correspondent relations between banks and states.

It was during this period that Russia experienced a smooth transition to a payment system generally accepted in world practice. Almost all types of economic relations in society are embodied in cash settlements and payments, carried out mainly by banks.

New system non-cash payments in Russia began to take shape in parallel with the formation of a two-tier banking system, which in turn is the main link in the conduct of settlement operations. One of the factors for ensuring the continuity of settlements throughout the economic space of the country is the uniform application of the settlement rules, which are determined by regulations. These documents are issued by the Central Bank of the country. They are binding on all banks and their clients. Currently, the system of non-cash payments continues to improve.

The principle of the legal regime for the implementation of settlements and payments is due to the role of the payment system as the main element of any modern society.

The main regulatory body of the payment system is the Central Bank of the Russian Federation. He is responsible for:

Establishment of rules, terms and standards for the implementation of settlements and the documents used in this case;

Coordination, regulation and licensing of the organization of settlement systems.

The procedure for non-cash payments in the national economy is determined by the Civil Code, as well as by the regulations of the Bank of Russia.

The system of legislation regulating banking activities is built on a hierarchical basis:

1. The first step is the Constitution of the Russian Federation

The Constitution of the Russian Federation has the highest legal force, in addition, all laws and legal acts in Russia must not contradict the Constitution of the Russian Federation, according to Part 1 of Art. 15 of the Constitution.

Article 71 of the Constitution of the Russian Federation introduces: establishing the legal foundations of the single market;

customs, currency, credit, financial regulation, money issue, bases of price policy;

federal economic services, including federal banks.

In Art. 74 determines that the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources is not allowed on the territory of the Russian Federation. Art. 75 dedicated monetary unit Russian Federation - the ruble, and determines that the issue of money is carried out exclusively by the Central Bank of the Russian Federation, whose main function is to protect and ensure the stability of the ruble.

2. The second stage - Federal laws. They must be adopted in accordance with the Constitution and regulate the diverse and complex relations that arise in the process of implementation economic activity. With regard to banking operations, acts of the Central Bank of the Russian Federation occupy a special place. These acts are located separately in the hierarchy of normative legal acts, so some of them will be considered separately.

The Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) is the main federal law and regulates civil law relations. The Federal Law “On Banks and Banking Activities” and the Federal Law “On the National Payment System” are the main laws that regulate non-cash payments in Russia.

The federal law "On the National Payment System" establishes the foundations of the national payment system in the Russian Federation, regulates relations in the field of payment services and the use of electronic means. This law determines the procedure for the transfer of funds, the procedure for the provision of services by bank payment agents, postal organizations, payment system operators and determines the operation of the national payment card system.

The federal law "On the National Payment System" ensures the functioning of an independent structure of card settlements, independent of international payment systems, the implementation of a social function for the implementation of various services in in electronic format. It also establishes the procedure for obtaining a registration certificate for organizations wishing to become a payment system operator, fixes the requirements for the rules for making payments and the basic principles for monitoring their activities.

According to it, the supervision of the activities of organizations in the national payment system is fully vested in the Central Bank of Russia.

The Federal Law "On Banks and Banking Activities" regulates all types of activities in the banking system of the Russian Federation, which includes the Bank of Russia, branches of foreign banks and credit institutions.

Other main federal laws governing the implementation of cashless payments in Russia:

· Federal Law "On currency regulation and currency control" - regarding the implementation of currency transactions;

Federal Law of May 22, 2009 "On the activity of accepting payments from individuals carried out by payment agents"

3. The third stage - Decrees of the President of the Russian Federation and Decrees of the Government of the Russian Federation. Decrees of the President are of a subordinate nature and are applied provided they do not contradict the federal laws of the Russian Federation. Decrees of the Government are most often targeted and applied in relation to the executive authorities and the Government of the Russian Federation itself.

4. The next step is the regulatory legal acts of the executive authorities of the Russian Federation - ministries and departments, as well as the regulatory legal acts of the Central Bank of the Russian Federation:

Regulation "On the issue of bank cards and on operations performed using payment cards"

Regulation "On the rules for the transfer of funds"

Other legal acts, agreements, decrees, etc.

In addition, it is necessary to take into account the Agreements concluded between the Russian Federation and other countries in the field of regulation of financial, banking and economic relations.

According to these provisions, the organization of cashless payments in the Russian Federation is based on the following rules:

1. With a variety of forms of ownership, activities of enterprises in the conditions of the development of commodity-money relations, enterprises retain the right to freely choose the forms of payment and fix them in contracts. Restriction of freedom of choice by a commercial bank is not allowed.

2. Funds are debited from the accounts of enterprises by order of the account holder.

3. All payments from the accounts of enterprises are made in the order determined by the head of the enterprise, unless otherwise provided by law.

From a legal point of view, the obligation to make settlements when making payments with the participation of legal entities, as well as individual entrepreneurs in a non-cash manner, is established by paragraph 2 of Art. 861 of the Civil Code of the Russian Federation.

These settlements are made from bank accounts using settlement documents - issued in the form of documents on paper or, in cases established by regulatory enactments, electronic payment documents:

Orders of the payer (client or bank) to write off funds from his account and transfer them to the account of the recipient of funds;

Instructions of the recipient of funds (collector) to write off funds from the payer's account and transfer them to the account specified by the recipient of funds (collector).

The implementation of non-cash payments is one of the main areas of work of commercial banks with clients. In accordance with the current legislation on the territory of the Russian Federation, the following forms of non-cash payments are allowed: payment orders, settlements by collection, letters of credit and checks. Each form of payment has its pros and cons; some have a higher percentage of use, others - a smaller one. This article will consider the legal basis for making settlements using letters of credit.// A.V. DAVYDOVA. North-Western branch of the Moscow Humanitarian and Economic Institute, head. Department of Theory and History of State and Law. Methodical journal "Legal work in a credit institution". No. 5/2006

On the nature of a letter of credit

The term "letter of credit" is found in many languages, but in translation it has a different meaning. For example, akkreditiv in German means “authority to do something”, English letter of credit is understood not only as a “settlement document”, but also as a “letter of credit obligation” 1 , the French version of accredtif literally means "confidential". It can be seen from the above that there is no unity in the translation of this definition.

Paragraph 3 (Art. 867-873) of the Civil Code of the Russian Federation does not give a clear definition of what a letter of credit is, it only talks about how the settlement mechanism is carried out. In the literature, for example, one can find such definitions of the term "letter of credit":

It is a means of transferring funds or a method of payment; it facilitates settlements by allowing them to be carried out in several places without increasing the number of correspondent banks 3 .

These are just some of the definitions; in general, there are several points of view on the legal nature of a letter of credit:

settlement operation;
transaction (one might say, a conditional transaction);
contingent monetary obligation;
security;
performance obligation to a third party;
an independent contract, relations under which are built on the principle of a contract in favor of a third party;
type of commission agreement, etc.

Types of letters of credit

In the specialized literature one can find the following classification:

1. Covered (deposited)- this is a letter of credit, at the opening of which the issuing bank is obliged to transfer the amount of the letter of credit (coverage at the expense of the payer or at the expense of a loan granted to him at the disposal of the executing bank for the entire duration of the obligation of the issuing bank).

2. Uncovered (guaranteed)- this is a letter of credit, upon opening of which the executing bank is given the right to write off the entire amount of the letter of credit from the account of the issuing bank maintained by it (if there is a correspondent relationship).

3. Documentary letter of credit- any transaction, however it may be called, by virtue of which the buyer gives a written instruction to his bank to pay (from the buyer's account) to the seller a certain amount of money within the agreed time after the latter has submitted the documents indicated by the buyer.

A documentary letter of credit can be both revocable (Article 869 of the Civil Code of the Russian Federation) and irrevocable (Article 868 of the Civil Code of the Russian Federation).

4. Revocable letter of credit- this is a letter of credit that can be changed or canceled by the issuing bank without prior notice to the recipient of funds.

5. Irrevocable letter of credit- this is a letter of credit that cannot be canceled without the consent of the recipient of funds.

6. Unconfirmed Irrevocable Documentary Letter of Credit means that the seller presents the documents to the advising bank in full in accordance with the terms of the letter of credit, but payment by the advising bank will be made only after compensation is received from the issuing bank.

7. Confirmed Irrevocable Documentary Credit necessary when conducting trade transactions with a country where there is an unstable political or economic situation, the seller may require confirmation of a letter of credit for additional security of legal and mandatory settlements from a bank known to him in his own country.

8. Accepted letter of credit(sometimes also referred to as an urgent letter of credit) differs in that, under its terms, the seller issues a draft in the name of the advising / confirming bank demanding payment on a certain date in the future for a fixed time, i.e. instead of receiving immediate payment, the draft will be returned to the seller with an acceptance inscription on the front side made by the bank.

9. Letters of credit Back-to-Back- this type of letters of credit implies the presence of two letters of credit. Typically, a letter of credit is used in settlements between the seller and the buyer. If an intermediary is involved in the transaction, the conditions become more complicated. The intermediary receives a "first" letter of credit issued in his favor by a bank, and then asks another bank to issue a "second" letter of credit in favor of his supplier. This kind of transaction is referred to as a back-to-back letter of credit. This type of transaction is quite complex, and a significant amount of documentation is involved in its execution.

10. Counter letter of credit similar to a Back-to-Back letter of credit, the only difference being that the issuer of both the "first" and "second" letters of credit is the same bank.

11. Letter of credit with deferred payment according to common practice (especially in Europe), it is used if it is necessary to defer payment until a certain date in the future and at the same time not force the seller to draw up a draft. If the seller presents documents in accordance with the terms of this type of letter of credit, then the following circumstances shall prevail.

12.Tradeable letters of credit- such documentary letters of credit, the terms of which require the seller to issue a draft in the name of the issuing bank or in the name of the buyer in order to make payment on the draft immediately upon receipt of the documents.

Additionally, the issuing bank may include instructions requiring the advising bank to advise the letter of credit to the seller without confirmation (without obligation on the part of the advising bank). It may also be subject to the condition that the letter of credit is available for negotiation to the advising bank or any bank in the country of the seller.

13. Proactive letter of credit was designed to allow the seller to receive a portion of the amount stipulated in the letter of credit as an advance. Historically, these letters of credit originated to secure the supply of wool from Australia to Europe, and part of the amount that was provided as an advance to the seller was printed in red ink, so sometimes this species Letters of credit are referred to as "red clause" letters of credit. Sometimes you can find such names of a proactive letter of credit as clean, unsecured and guaranteed. The proactive type of letter of credit is now rare.

14. Revolving letter of credit, or a renewable letter of credit, is a type of letter of credit that can be replenished at certain intervals as the beneficiary receives money. Replenishment of a letter of credit can occur automatically, but this happens in extremely rare cases.

15. Standby letter of credit(duty) works like a bank guarantee, is almost their counterpart (it is sometimes called a "quasi-guarantee") and is issued in order to cover trading debts. Such letters of credit appeared in the United States, where the provision of bank guarantees is prohibited by law. These letters of credit are of a general nature, often without specifying the goods and the method of their delivery, and are payable against the presentation of a signed declaration by the seller that payment has not been made for the goods delivered to the buyer.

16. Transferable letter of credit provides for the possibility of transferring the entire amount of funds or part of it in favor of other (“second”) beneficiaries by order of the “first” beneficiary named in the letter of credit (Article 54 [a] UPDA). In this case, the buyer issues an irrevocable letter of credit to the reseller. The key requirement that distinguishes a transferable letter of credit is a direct and unambiguous indication in the conditions that this letter of credit is transferable (art. 54 [b] UPDA). The transfer of funds is made by the “first” beneficiary to any country in the world, to any supplier/transferee (assignee), but only upon agreement and through the advising bank (Article 54 [c] UPDA).

Despite the large number of types of letters of credit, only revocable, irrevocable, covered or uncovered letters of credit can be opened on the territory of the Russian Federation, revolving letters of credit are less common.

All this is due to the legal regulation of this issue, and also due to the fact that only payment orders are widespread in business turnover (90.6 percent of the total volume and 77.1 percent of the total number of payments made through the payment system of the Russian Federation). non-cash, for example, in 2002), and payment requests, collection orders, checks and letters of credit are used quite rarely (0.7 percent of the total and 1.9 percent of the total number of payments made through the payment system of the Russian Federation in a non-cash order in 2002) 4 .

Letter of credit payment procedure

In accordance with Art. 867 of paragraph 3 "Payments under a letter of credit" of the Civil Code of the Russian Federation, the procedure for making settlements under a letter of credit is regulated by law, as well as by the banking rules established in accordance with it and the customs of business turnover used in banking practice.

It is important to understand that banks deal only with documents, but not with the goods that these documents represent, and that banks only consider documents specified in the terms of the letter of credit and do not take into account any other documents (such as contracts and other agreements between the seller and the buyer).

The conditions of the letter of credit are fully determined by the buyer and are communicated in writing to the buyer's bank simultaneously with the application for opening a letter of credit. The bank that opens the letter of credit (issuing bank) has an obligation towards the buyer to make payment against correctly presented documents specified in the terms of the letter of credit, as well as an obligation towards the seller, who has the right to receive payment against correctly presented documents. And with this, all the obligations of the bank are exhausted.

The procedure for opening a letter of credit is carried out in accordance with the standards established by the rules issued by the International Chamber of Commerce (ICC). These rules are referred to as the "Universal Documented Letter of Credit Rules". The main stages in the implementation of a transaction using a letter of credit (some types of letters of credit require a slightly different procedure):

1. After agreement between the buyer and the seller of the terms of the transaction, the buyer applies to his bank to open a letter of credit in favor of the seller.

2. The buyer's bank issuing the letter of credit prepares for the issuance of a letter of credit that includes all the buyer's instructions regarding the shipment of goods by the seller and the documentation provided by the seller, after which it sends the letter of credit to the correspondent bank (consultant bank) at the location of the seller.

3. The seller may require that a certain bank act as an advisory bank, or the buyer's bank may choose for this operation one of the banks associated with it (hereinafter - the seller's bank) at the location. The seller's bank then sends a letter of credit to the seller.

4. The seller, having carefully studied all the conditions set forth in the letter of credit, notifies the buyer whether he can fulfill all the requirements of the buyer and, if it is impossible to fulfill any points, asks to amend the letter of credit. Having finally agreed on the terms of the transaction, the seller prepares the goods and organizes their shipment to the location of the buyer.

5. After the shipment of the goods, the seller receives a bill of lading and other documents (the documents required usually include a bill of lading, commercial invoice, certificate of origin, sometimes a certificate of inspection), which he must provide to the buyer under the terms of the letter of credit. Sometimes some of the documents need to be obtained even before the shipment of the goods.

6. Having sent the documents to his bank, the seller informs about the full fulfillment of the conditions of the letter of credit, and the seller's bank, after checking the documents for compliance, sends them to the buyer's bank. If the letter of credit is irrevocable and confirmable, the seller is guaranteed payment by his bank.

7. After the buyer's bank receives all the documents, he (the bank) notifies the buyer, who in turn must check them, certify with his signature and make payment. The transfer of funds gives the right to receive documents that provide their holder with the right of ownership of the goods.

8. The buyer's bank makes the payment to the seller's bank, which in turn makes the payment to the seller.

Money transfers from the buyer to the bank, from the buyer's bank to the seller's bank and from the seller's bank to the seller can be carried out simultaneously with the exchange of documents or in accordance with a pre-agreed procedure.

From the foregoing, it can be seen that settlements under a letter of credit are a rather complicated form of settlement.

Features of legal regulation of settlements under letters of credit

What is a letter of credit - a conditional agreement, a settlement transaction, an obligation, or just a form of payment?

The question is difficult. So, for example, if you look at clause 4.1 of the Regulations on non-cash payments in the Russian Federation dated 03.10.2002 No. 2-P, you can see the following: “When making settlements under a letter of credit, a bank acting on behalf of the payer to open a letter of credit (hereinafter referred to as the issuing bank) , undertakes to make payments in favor of the recipient of funds upon submission by the latter of documents that meet all the conditions of the letter of credit, or authorize another bank (hereinafter referred to as the executing bank) to make such payments ... The letter of credit is separate and independent of the main agreement. It can be said differently that a letter of credit is a kind of conditional monetary obligation of the issuing bank in relation to the recipient of funds. But these obligations arise from the contract concluded between the supplier and the buyer. Commercial banks, in principle, in this agreement act as intermediaries for the implementation of this transaction.

Is the letter of credit a conditional transaction in this case? Also debatable. To classify a transaction as conditional, it is necessary to include a suspensive or resolutive condition in it. In accordance with Art. 157 of the Civil Code of the Russian Federation, a transaction can be made both under a resolutive condition and under a suspensive one.

According to paragraph 1 of Art. 157 of the Civil Code of the Russian Federation, a transaction is considered to be concluded under a suspensive condition if the parties have made the emergence of rights and obligations dependent on a circumstance regarding which it is not known whether it will occur or not. Undoubtedly, the condition appears - this is the provision by the supplier of all required documents, but the obligation of the issuing bank begins to arise not upon the occurrence of the above event, but at the time of the opening of the letter of credit, and the letter of credit is opened much earlier. The opening of a letter of credit precedes the fulfillment of rights and obligations under the main contract. In this case, is it possible to consider the provision of documents by the supplier as a legal fact, namely an event, as an event enshrined in the norm of Art. 157 of the Civil Code of the Russian Federation? We think not.

The cancellation condition here cannot be applied at all. “The transaction is considered to be completed under a resolutive condition if the parties have put the termination of rights and obligations depending on a circumstance regarding which it is not known whether it will occur or not” 5 . Submission of documents to the issuing bank is the basis for the commission of transactions specified by law, and not for termination.

The issue of determining the legal nature of a letter of credit was touched upon by many experts, such as L.G. Efimova, L.A. Novoselova, M.M. Agarkov, A. Erdelevsky, A.V. Seregin, M.I. Braginsky and others. Each of them offers different points of view on the legal nature of a letter of credit. And each theory is unique, peculiar and has strong arguments in its own way.

However, the purpose of the article is not to determine the legal nature of a letter of credit, but in general to analyze the state of the letter of credit market in Russia. Summing up, we can conclude that a letter of credit is a kind of settlement transaction, in which there are certain elements of various agreements provided for by the current legislation.

If we consider separately each form of payment and legal acts regulating cashless payments in the territory of the Russian Federation, then, in fact, the situation looks somewhat depressing. In this case, the sources are the following legal acts:

ICC Uniform Rules for Interbank Reimbursement for Documentary Letters of Credit;

Uniform Customs and Practice for Documentary Letters of Credit;

Civil Code of the Russian Federation;

Regulation of the Central Bank of the Russian Federation dated 03.10.2002 No. 2-P "On non-cash payments in the Russian Federation".

Of course, here we can say about the UN Convention on Contracts for the International Sale of Goods, and the Customs Convention on the International Carriage of Goods under the TIR Carnet (TIR Convention), and the UN Convention on Independent Guarantees and Standby Letters of Credit, and a number of other international sources regulating circulation of letters of credit. Despite the large number of international documents, there are very few regulations governing the procedure for making settlements using letters of credit on the territory of the Russian Federation, and all of them are of a specific nature.

The specificity lies in the fact that the Central Bank of the Russian Federation is mainly involved in the development of regulatory documents in this area. At the moment, one can meet proposals for the formation of a special codified act in the field of banking, namely, the development of the Banking Code of the Russian Federation.

The appearance of such a document is undoubtedly necessary, since this legal act will contain a clear regulation of the main forms of activity of commercial banks and their clients, legal entities and individuals. Including the issues of non-cash payments will be considered.

So what are the main problems in the settlement of letters of credit?

1. The letter of credit form of payment is used only in non-resident circulation. It is no secret that this form of payment is inherent only in very large cities and those cities that have access to the international market. So, for example, in Moscow and St. Petersburg the turnover of letters of credit is much higher than in small towns.

2. The complexity of the implementation of this operation. Unfortunately, our entrepreneurs are afraid to make payments in more complex ways. It is much easier to draw up settlement relations with payment orders and not to bother with the details of such settlements.

3. Must be noted low level legal knowledge. Insufficient attention in the teaching of disciplines in universities is paid to the issues of non-cash payments.

4. Insufficient number of developments of the regulatory framework on these issues.

According to the author, these are the main problems in the implementation of settlements in the form of letters of credit. Despite the existing shortcomings and shortcomings, the author believes that the future still belongs to such a form of payment as a letter of credit. Moreover, it is the presence of a large number of transactions on letters of credit in the country that speaks of its high economic and legal level.

LITERATURE

1. Civil law: part II / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 1997.

2. Financial and credit encyclopedic Dictionary/Col. authors; under total ed. A.G. Gryaznova. M.: Finance and statistics, 2004.

3. Unified ICC Rules for Interbank Reimbursement under Documentary Letters of Credit (effective from 01.07.1996).

4. Uniform rules and customs for documentary letters of credit. Series "Publications of the International Chamber of Commerce" // In Russian. and English. lang. / Ed. ON THE. Kazakova. M.: Consultbankir, 1994. 120 p.

5. Civil Code of the Russian Federation (Part II).

6. Regulation of the Central Bank of the Russian Federation dated 03.10.2002 No. 2-P “On non-cash payments in the Russian Federation”.

7. Comment to federal law dated 02.12.1990 No. 395-1 “On banks and banking activities” / ed. L.G. Vostryakova. Moscow: Yustitsinform. 2006.

1 Civil Law: Part II / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 1997. S. 467.
2 Financial and Credit Encyclopedic Dictionary / Col. authors; under total ed. A.G. Gryaznova.
M.: Finance and statistics, 2004. S. 20.
3 Ibid.
4 Payment system of Russia. - http://analytics/standart_system/print.asp?file=payment_sys.html. 2003.
5 Paragraph 2 of Art. 157 of the Civil Code of the Russian Federation.

Estimate:

2. Regulatory regulation of non-cash payments

On the nature of a letter of credit

Types of letters of credit

Letter of credit payment procedure

Features of legal regulation of settlements under letters of credit

LITERATURE

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