Consequences of improper execution of the bank deposit agreement. Obligations from bank account and bank deposit agreements

The bank's violation of the bank deposit agreement (each of the obligations that make up its content) entails the application of the general provisions of the law of obligations on the liability of the debtor for violation of a civil obligation: in accordance with paragraph 1 of Art. 393 of the Civil Code, the debtor is obliged to compensate the creditor for losses caused by non-performance or improper performance of the obligation.

Also, Chapter 44 of the Civil Code of the Russian Federation contains several special rules on the bank deposit agreement.

Due to the fact that the rules on the bank account agreement (clause 3 of Article 834 of the Civil Code) apply to the relations between the bank and the depositor on the account to which the deposit was made, in case of violation by the bank of its obligation to the depositor to open and maintain a deposit account, the norm on the bank's responsibility for the improper performance of transactions on the account, contained in Art. 856 CC. According to the specified norm, in cases of untimely crediting to the account received by the client Money or their unjustified debiting by the bank from the account, as well as failure to comply with the client's instructions to transfer funds from the account or to issue them from the account, the bank is obliged to pay interest on this amount in the manner and in the amount provided for in Art. 395 Civil Code. 104

However, the above norm, like the rest of the rules on the bank account agreement, can be applied to relations under the bank deposit agreement, unless otherwise provided by special rules on the bank deposit agreement or follows from the essence of the said agreement. Due to the fact that in accordance with the special rules on the bank deposit agreement (clause 3 of Art. 834 of the Civil Code), legal entities - depositors are prohibited from transferring funds in deposits (deposits) to other persons, provided for in Art. 856 of the Civil Code, liability for such a violation as the bank's failure to comply with the client's instructions to transfer funds from the account cannot be applied under a bank deposit agreement, according to which the depositor is a legal entity. For the same reason (there is no reason for liability due to the impossibility for the depositor to give instructions to the bank to transfer funds from the account), the said liability cannot be applied to relations under a bank deposit agreement, drawn up by issuing a savings (deposit) certificate to the depositor, certifying only the depositor's right to receive, after the expiration of the established period, the amount of the deposit and the interest stipulated in the certificate (clause 1 of article 844 of the Civil Code). 105

At the same time, in the cases described above, the stipulated by Art. 856 of the Civil Code, liability shall be applied accordingly: under a bank deposit agreement, according to which the depositor is a legal entity, - for untimely crediting to the deposit account of funds received by the bank in the name of the depositor from third parties, and for untimely issuance of the deposit amount (untimely transfer of funds to the current account of a depositor - a legal entity) upon the expiration of the term or upon the occurrence of a condition stipulated by the agreement; under a bank deposit agreement certified by a savings (deposit) certificate - for late issuance of the deposit amount (and if the certificate holder is a legal entity - for its untimely transfer to the depositor's current account), bearing in mind, among other things, the right of the holder of a savings (deposit) certificate on its early presentation for payment by the bank. 106

If the bank fails to fulfill its obligations to ensure the return of the deposit, as well as if its conditions deteriorate, the depositor has the right to demand an immediate return of the deposit amount, as well as the payment of interest on it in accordance with clause 1. Article 809 of the Civil Code of the Russian Federation, and compensation for losses caused to him (clause 4 of Article 840 of the Civil Code of the Russian Federation).

E.A. Pavlodsky writes: "The Civil Code (clause 4 of Art. 840) establishes that in the event the bank fails to fulfill its obligations to ensure the return of the deposit, the depositor has the right to unilaterally terminate the agreement and demand from the bank an immediate return of the deposit amounts and payment of the established interest for the entire period of using the depositor's funds by the bank. If in this case the depositor incurred losses (for example, he was forced to invest his funds on worse conditions, etc.), he also has the right to demand from the bank, in excess of the amount of interest, to reimburse the incurred losses. " 107

Otherwise evaluates legal nature percent, the collection of which is provided for in paragraph 4 of Art. 840 GK, D.A. Medvedev, who believes that in cases of non-fulfillment or improper fulfillment by the bank of its obligation to ensure the return of the deposit or deterioration of the conditions of security, "the responsibility is to pay the depositor a forfeit in the form of bank interest (refinancing rate) calculated on the day the debt is repaid, as well as compensation for losses ". 108

It seems that the above judgments are not entirely accurate. The interest payable by the bank in the case provided for in paragraph 4 of Art. 840 of the Civil Code, represent the bank interest rate (refinancing rate) existing on the day the borrower pays the amount of debt (clause 1 of Article 809 of the Civil Code), which exceeds the amount of interest on the amount of deposits under the bank deposit agreement and therefore cannot be "the established interest for the entire period of using the depositor's funds by the bank" (as E. A. Pavlodsky believes) due to the fact that this role is played by the interest provided for by the bank deposit agreement. However, the interest payable by the bank in case of failure to provide security for the return of the deposit, its loss and deterioration of the conditions of the provided security, cannot qualify as a forfeit (as D.A. return of the deposit), the interest paid by the bank on the amount of the deposit (in the amount stipulated by the agreement) is a payment for the use of funds contributed by the depositor, and can in no way be recognized as a measure of responsibility. 109

Interest payable by the bank in accordance with paragraph 4 of Art. 840 of the Civil Code of the Russian Federation (determined by the refinancing rate), should be divided into two parts: the first part - the interest stipulated by the bank deposit agreement, which is a mandatory payment for the use of funds; the second part (the difference between the refinancing rate and the amount of interest stipulated by the bank deposit agreement) is an additional obligation of the bank in connection with the improper performance of its obligations, and must be qualified as a measure of responsibility. This measure should be recognized as a penalty, since it is subject to application for a violation not related to the delay in the performance of a debt obligation.

In the position of a debtor who has delayed monetary promissory note, the bank turns out to be in case of failure to fulfill its main obligation to issue (return) the amount of the deposit at the request of the depositor. In this case, the bank is responsible for non-fulfillment of the monetary obligation in the form of collection provided for in Art. 395 GK interest on the amount of the deposit for the unlawful use of other people's funds. The specified interest is collected from the bank in the amount determined by the bank interest rate (refinancing rate) existing on the day the obligation is fulfilled (if the bank voluntarily fulfills it) or on the day the depositor applies to the court. The bank deposit agreement may provide for a different amount of interest to be paid by the bank in case of delay in issuing (returning) the deposit amount (as a measure of responsibility). 110

What is typical, if the bank does not fulfill the requirements for the payment of interest, in accordance with Article 395 of the Civil Code of the Russian Federation, interest for non-fulfillment of the obligation may also be charged to it. Professor V.V. Vitryansky: “On June 8, at a meeting of the Presidium of the Supreme Arbitration Court, the case on the issue of a writ of execution for the decision of the arbitral tribunal was considered. The case was about losses for improper performance of an obligation. The writ of execution was not executed for half a year. After that, the customer filed a second claim for the recovery of interest under Art. 395 Civil Code for the amount of losses. The majority of votes won the point of view that it is necessary to collect interest, charging it on the amount of losses. It is impossible to explain logically based on the views that prevail in doctrinal legislation today. But here is the main argument in favor of the candidate's position: the contractor violated the work contract, an independent protective legal relationship arose on the application of liability measures. The court applies measures of responsibility, collects damages, issues a writ of execution. The new obligation to collect damages has not been fulfilled. What comes next: just the sub-enforcement legal relationship on the application of measures of responsibility for late payment of damages. The fact that such a concept has appeared in science, I think it is a blessing, in general it contributes to the development of the science of civil law and opens a new direction of civil studies. " 111

Conclusion.

The bank deposit agreement is one of the most important parts of the entire civil law industry. Since ancient times, this treaty accompanies humanity and helps the development of the economy and the legal sphere of many countries. As much as this agreement is important for the state and its population, it is just as strongly protected - the main feature of the bank deposit agreement is the legislative security of its return. Banks are obliged to ensure the return of the deposit through its compulsory insurance, and in cases stipulated by law and in other ways.

One of the most important institutions is clearly expressed in the bank deposit agreement - the institution of citizens' trust in the state and legislation. Citizens and legal entities actually entrust their savings to other entities and realize that their funds are under reliable protection, and their return is legally guaranteed.

The guarantees of the safety of the deposit are provided by article 840 of the Civil Code of the Russian Federation - "the return of deposits of citizens by the bank is ensured by compulsory deposit insurance carried out in accordance with the law, and in cases stipulated by law in other ways." She also explains that “the ways the bank provides the return of deposits legal entities are determined by the bank deposit agreement ". Those. the return of a deposit to depositors - legal entities is also protected by law, the difference is that it is established on a contractual basis between the bank and the depositor - a legal entity.

According to Art. 837 of the Civil Code, the main division of deposits into types is made according to the timing of their return. In this regard, a bank deposit agreement can be concluded on the terms of issuing a deposit after a certain time (term deposit), or on the terms of issuing a deposit at the first request of the client (demand deposit).

And again, regardless of the type of deposit, the bank is obliged to give out to the depositor citizen on demand the amount or part of it. Thus, the depositor can at any time unmotivated and in unilaterally demand changes and termination of the bank deposit agreement, while the condition of the agreement on the waiver of the citizen from the right to receive a deposit on first demand is null and void. An exception to this rule is a contribution made by a legal entity on other terms of return (i.e. not on demand) provided for by the contract.

A bank deposit agreement is a paid service agreement. Clause 1 of Art. 423 of the Civil Code of the Russian Federation calls a contract on remuneration, according to which one party must receive payment or other reciprocal provision for the performance of its duties. In this case, the bank's service is its actions, ensuring the return of the deposit amount, and also the payment of interest. The bank's remuneration for this service is the granting of the right by the depositor to the bank to use the amount of the deposit during the period of its storage. Thus, services under a bank deposit agreement are rendered to the depositor by the bank free of charge, but not free of charge.

One of the main obligations of the bank under the bank deposit agreement is the accrual of interest on the amount of the deposit and their subsequent payment to the depositor. In accordance with Article 838 of the Civil Code of the Russian Federation, the bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement. In the absence of a clause on the amount of interest paid in the agreement, the bank is obliged to pay interest in the amount determined in accordance with paragraph 1 of Article 809 of the Civil Code of the Russian Federation.

As correctly noted in the legal literature, the condition on the amount of interest (and add to this - on the procedure for their payment) is essential condition of the bank deposit agreement, despite the above norm, which allows "compensating" the condition on the amount of interest on the deposit in the event that there is no such in the text of the agreement. The bank is obliged to pay the depositor interest on the deposit, regardless of the amount of the deposit and any other conditions.

The legislation of the Russian Federation needs more careful regulation of this agreement. So, the controversial issue is the obligation to return the required amount of the deposit to the depositor "on demand", or rather the term of this obligation. It is necessary to establish a specific term for the bank to fulfill its obligation to issue the deposit amount or part of it at the first request of the depositor. This provision is also adhered to by the draft concept for the development of legislation on securities and financial transactions, which is part of a unified concept for the development of civil legislation of the Russian Federation. The concept also puts forward the following proposals for improving legislation:

The development of regulation of relations arising in connection with the issue and circulation of savings (deposit) certificates in civil circulation is required. The main provisions governing these relations should be established in the law, and not at the level of regulations of the Central Bank of the Russian Federation.

In paragraph 3 of Article 844 of the Civil Code of the Russian Federation, indicate that a savings (deposit) certificate may be presented for payment ahead of schedule, unless otherwise provided by the terms of the certificate. The introduction of this novelty cannot and should not affect the right of citizens-depositors to open deposits that give the possibility of their early withdrawal.

Also, the Concept actually proposes to introduce a new type of term deposit, according to which citizens-depositors will have the right to receive the money contributed to the deposit only after the end of the term of the deposit established by the agreement concluded between the citizen and the bank. Deposits of this type, as indicated in the Concept, should not be subject to the provisions of clause 2. Art. 837 of the Civil Code of the Russian Federation, the right of citizens-depositors to receive the deposit amount at their first request, regardless of the type of deposit.

Analysis of Art. 844 of the Civil Code of the Russian Federation allows us to conclude that the rules for all types of deposits are practically the same: under a bank deposit agreement of any type, the bank is obliged to issue the amount of the deposit or part of it at the first request of the depositor (clause 2 of article 837 of the Civil Code of the Russian Federation); according to clause 3 of Art. 844 of the Civil Code of the Russian Federation, the depositor (certificate holder) has the right to present a savings (deposit) certificate for payment ahead of schedule.

In such a situation, there is always the possibility of early termination of the term bank deposit agreement and early presentation of a savings (deposit) certificate for payment, and therefore banks are not in a position to plan the placement of funds attracted from depositors for long periods. Simultaneous withdrawal term deposits can lead to bankruptcy of any bank. Therefore, the introduction of this change into the legislation seems to be quite reasonable.

An essential condition of the agreement is the subject, which is the bank's deposit services (type of deposit). The condition on the amount and procedure for payment of interest is not essential.

Unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the amount of the loan in the amount and in the manner determined by the agreement. In the absence of a clause on the amount of interest in the agreement, their amount is determined by the existing rate of bank refinancing.

By general rule, the bank is not entitled to unilaterally change the interest established by the agreement. Unless otherwise provided by the bank deposit agreement, the bank has the right to change the amount of interest paid on demand deposits.

In case of a decrease in the amount of interest by the bank new size interest is applied after one month from the date of the corresponding message.

The amount of interest on a term deposit determined by the bank deposit agreement may not be unilaterally reduced by the bank, unless otherwise provided by law. Under an agreement for such a bank deposit concluded by a bank with a legal entity, the amount of interest cannot be unilaterally changed, unless otherwise provided by law or agreement (Article 838 Civil Code RF).

Interest on the amount of a bank deposit is calculated from the day following the day it was received by the bank until the day preceding its return to the depositor or its debiting from the depositor's account for other reasons.

Interest on the amount of the bank deposit is paid to the depositor at his request at the end of each quarter, separately from the amount of the deposit, and the interest unclaimed during this period increases the amount of the deposit on which interest is charged (Article 839 of the Civil Code of the Russian Federation).

The bank deposit agreement must be concluded in writing. Failure to comply with the written form of the bank deposit agreement entails the invalidity of this agreement. Such an agreement is null and void (Article 836 of the Civil Code of the Russian Federation).

The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book,

savings or deposit certificate, or other document issued by the bank to the depositor that meets certain requirements.

A savings book certifies the conclusion of a bank deposit agreement with a citizen and the payment of funds to his account on the deposit is certified.

Allocate the following types savings books: a personal savings book, a bearer savings book, which is a security (Article 843 of the Civil Code of the Russian Federation).

A savings (deposit) certificate is a security document certifying the amount of the deposit made to the bank and the rights of the depositor (certificate holder) to receive the deposit amount and the interest specified in the certificate at the bank that issued the certificate, or at any branch of this bank after the expiry of the specified period.

Savings (deposit) certificates, like savings books, can be: bearer, registered (Article 844 of the Civil Code of the Russian Federation).

The bank deposit agreement is real, since it is considered concluded from the moment the amount of money is deposited, compensated, unilateral.

The parties to the agreement are:

Bank is a credit institution that has the exclusive right to carry out, in aggregate, the following banking operations: attracting funds from individuals and legal entities in deposits, placing these funds on its own behalf and at its own expense on terms of repayment, payment, urgency, opening and maintaining bank accounts individuals and legal entities. Deposits are accepted only by banks that have this right in accordance with a license issued by the Bank of Russia participating in the system compulsory insurance deposits individuals in banks and registered with an organization performing the functions of compulsory deposit insurance. The right to attract deposits from individuals is granted to banks, from the date state registration which have passed at least two years8.

In order to prevent the implementation banking operations by unauthorized organizations, Art. 835 of the Civil Code of the Russian Federation provides for adverse consequences for such organizations. In case of acceptance of a deposit from a citizen by a person who does not have the right to do so, the depositor may demand an immediate return of the deposit amount, as well as the payment of interest on it, and compensation in excess of the amount of interest of all losses caused to the depositor.

If such a person has accepted the funds of a legal entity on the terms of a bank deposit agreement, such an agreement is invalid.

Similar consequences apply in cases:

1) attracting funds from citizens and legal entities by selling them shares and other securities, the issue of which is recognized as illegal;

2) attracting funds from citizens in deposits against bills of exchange or other securities, excluding the receipt of their deposit holders on demand and the exercise of other rights by the depositor.

Citizens can act as contributors Russian Federation, Foreign citizens and stateless persons. A bank deposit agreement, in which the depositor is a citizen, is recognized as a public agreement. The Civil Code of the Russian Federation does not restrict the rights of legal entities to conclude bank deposit agreements along with individuals. Legal entities are not entitled to transfer funds in deposits (deposits) to other persons.

The second party to the bank deposit agreement is the depositor. A depositor can be a citizen or a legal entity. Any citizen can be a depositor in the bank, regardless of the level of his legal capacity: fully capable, relatively capable, limited in legal capacity and completely incompetent by virtue of the law (children under 6 years of age), court decisions (mentally ill and mentally ill persons recognized as incompetent). Another thing is, which of the citizens has the right to conclude a bank deposit agreement by their actions? Not all citizens have this right, but only:

Fully capable: adults, that is, who have reached the age of 18; persons who entered into a registered marriage before reaching the age of 18, having received the proper permission; emancipated, that is, minors who have reached the age of 16, working under an employment contract or engaged in entrepreneurial activity, recognized as fully capable by the decision of the guardianship and guardianship authority (with the consent of the parents, adoptive parents, guardian of the minor) or by the court (in the absence of such consent) (Art.27 Civil Code of the Russian Federation).

Relatively capable - minors aged 14 to 18 years. They have incomplete legal capacity, but they have the right to make contributions to credit institutions and dispose of them (clause 3 of article 26 of the Civil Code of the Russian Federation).

The court has the right to limit the legal capacity of a citizen if he abuses alcohol or drugs and thereby puts his family in a difficult financial situation. Such a person has the right to independently make only small household transactions. A person with limited legal capacity has the right to make other transactions (including the conclusion of a bank deposit agreement) only with the consent of the trustee. Consequently, with a person with limited legal capacity, a bank deposit agreement can be concluded only with the written consent of the trustee.

Partially capable people - minors between the ages of 6 and 14 (they are also called minors) - have very little legal capacity, which does not include the possibility of concluding a bank deposit agreement. Such children can become participants in a bank deposit relationship, but an agreement on their behalf can be concluded by their parents, adoptive parents, guardians.

Completely incapacitated people. These include children under the age of 6, as well as adults who, due to mental illness or dementia, cannot understand the meaning of their actions or control them and therefore have been declared legally incompetent by the court. These people can also be subjects of bank deposit relations, but their legal representatives conclude an agreement on their behalf: 1) in relation to children under the age of 6 - their parents, adoptive parents, guardian; 2) in relation to incapacitated adults - their guardians.

As for legal entities, all of them can enter into bank deposit agreements as depositors. In this case, it does not matter what is the organizational and legal form of a legal entity and on what form of ownership it is based. However, if a legal entity has special legal capacity, then it is necessary that the conclusion of a bank deposit agreement does not go beyond this legal capacity.

Unlike many other agreements, the bank deposit agreement is unilaterally binding. This means that as a result of its conclusion, obligations arise only on one side - on the side of the bank.

The bank deposit agreement is a service agreement. Therefore, in cases where the depositor is a person, this agreement is subject to the Law of the Russian Federation "On Protection of Consumer Rights" 9.

Art. 841 of the Civil Code of the Russian Federation allows third parties to deposit funds to the depositor's account, provided that the necessary information about his deposit account is indicated. In this case, it is assumed that the depositor has agreed to receive funds from such persons by providing them with the necessary data on the deposit account.

The responsibilities of the bank include: return to the depositor of the amount of the deposit, payment of due interest, observance of banking secrecy, ensuring the return of the deposit, in accordance with Art. 840 of the Civil Code of the Russian Federation.

The return of deposits of citizens by the bank is ensured through a process carried out in accordance with Federal law dated December 23, 2003 No. 177-FZ "On insurance of deposits of individuals in banks of the Russian Federation" 10. Participation in the deposit insurance system is compulsory for all banks. Funds of individuals are subject to insurance, except for monetary funds:

1) placed on bank accounts of individuals engaged in entrepreneurial activity without forming a legal entity, if these accounts are opened in connection with the specified activity;

2) placed by individuals in bearer bank deposits, including certified savings certificate and / or a bearer savings book;

3) transferred by individuals to banks in trust management;

4) placed in deposits in branches of banks of the Russian Federation located outside the territory of the Russian Federation.

Reimbursement for deposits is paid to the depositor in the amount of 100 percent of the amount of deposits in the bank, but not more than 100,000 rubles. If a depositor has several deposits in one bank, the total amount of obligations of which on these deposits to the depositor exceeds 100,000 rubles, compensation is paid for each of the deposits in proportion to their size. If the insured event occurred in relation to several banks in which the depositor has deposits, the amount insurance compensation calculated for each bank separately11.

When implementing compulsory insurance, banks are obliged to: pay insurance premiums to the compulsory deposit insurance fund; to provide depositors with information about their participation in the deposit insurance system, about the procedure and amounts of receiving compensation for deposits; post information about the deposit insurance system in the bank premises accessible to depositors, where depositors are serviced; keep records of the bank's liabilities to depositors, which allows the bank to form on any day a register of the bank's obligations to depositors in the form established by the Bank of Russia at the Agency's proposal.

If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in the event of loss of collateral or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount of the bank refinancing rate and compensation for losses caused.

Under a bank deposit agreement of any type, the bank is obliged to issue the deposit amount or a part thereof at the first request of the depositor, with the exception of deposits made by legal entities on other terms of return provided for by the agreement. The condition of the agreement on the waiver of the citizen from the right to receive a deposit upon first demand is null and void (clause 2 of article 837 of the Civil Code of the Russian Federation). The presentation by the depositor of a demand for an early return of the deposit amount constitutes a unilateral amendment of the terms of the agreement permitted by law on the initiative of the depositor. As a result, a fixed-term, targeted or conditional bank deposit agreement turns into a demand deposit agreement.

The depositor shall bear the negative property consequences of such a change in the agreement. Under an early terminated or amended agreement, the same interest is charged on the deposit amount as on the amount of the “demand” deposit, which is significantly lower than the interest on the term deposit, unless a different interest for this case was specifically provided for in the agreement. At the same time, lower interest is charged in such cases for the entire period from the moment when the depositor's money was deposited in the bank until the moment of their issuance. Even if the depositor does not demand from the bank the entire term deposit, but only a part of it, he is charged more than low interest established for demand deposits.

Unlike citizens, legal entities that have made a term deposit to the bank do not have the unconditional right to demand its early return. Such a right may be provided for by the bank deposit agreement upon its conclusion. If this is not the case, then the early return of such a deposit is possible only with the consent of the bank. This rule applies only to cases where the depositor is commercial organization... If the depositor of the fixed-term treasure is non-profit organization, she under no circumstances has the right to demand early return deposit amount12.

The bank deposit agreement is onerous. Its retribution is peculiar and manifests itself in the fact that the bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement. In the absence of a clause on the amount of interest paid in the agreement, the bank is obliged to pay interest in the amount of the refinancing rate of the Central Bank of the Russian Federation (clause 1 of article 838 of the Civil Code of the Russian Federation). The bank is entitled to use its funds at its own discretion until the depositor submits a demand for the return of the deposit. Most often, depositors' funds are used by the bank to carry out their credit operations... So the interest on the amount of the deposit, in essence, is a payment made by the bank for the use of other people's funds.

Payment of interest to the depositor on the amount of the deposit is an indispensable obligation of the bank. If the agreement stipulates that the bank is not obliged to pay the specified interest, this means that such an agreement is not a bank deposit agreement. It can be viewed as an interest-free loan agreement, the conclusion of which is permitted by law.

In the Civil Code of the Russian Federation, this issue is resolved ambiguously, depending on the type of contribution. On demand deposits (and such deposits are the majority, and the depositors are mainly citizens), the bank has the right to change the amount of interest paid on deposits, unless otherwise provided by the bank deposit agreement (part 1 of clause 2 of article 838 of the Civil Code of the Russian Federation). Usually, such a change is a decrease in the specified percentage, although the bank has the right to increase the mentioned percentage. According to Part 2, Clause 2, Art. 838 of the Civil Code in the event of a decrease in the amount of interest by the bank, the new amount of interest is applied to deposits made before the depositor's notice of the decrease in interest, after a month from the date of the corresponding notice, unless otherwise provided by the contract. For depositors, this rule is a very weak consolation.

The depositor may be notified of the upcoming decrease in interest on the deposit different ways: by mail, fax, etc. Savings bank notifies its contributors about this by publishing the corresponding message in the periodical press.

The bank deposit agreement may provide for a different procedure for the bank to exercise its right to reduce the amount of interest on demand deposits. The bank's decision to increase the interest on demand deposits comes into effect in the manner established by the bank itself. The bank is not obliged to notify depositors of such a decision13.

If a citizen depositor has made an urgent target or conditional deposit, the amount of interest established at the conclusion of the agreement cannot be changed by the bank unilaterally, unless otherwise provided by law. The bank cannot include its right to reduce the interest on a term deposit in the terms of the bank deposit agreement upon its conclusion. If such a condition is included, it has no legal value.

This rule of law does not coincide with the provision of Art. 29 of the Law of the Russian Federation "On banks and banking", Which gives the credit institution the right to change, including downward, the amount of interest on deposits, if this is provided for by an agreement with a depositor, including with a citizen. Since the norms of the Civil Code of the Russian Federation have greater legal force than the norms of current legislation, in such cases the norms of Art. 838 of the Civil Code of the Russian Federation.

If an agreement on a fixed-term bank deposit is concluded with a legal entity, the amount of interest cannot be unilaterally changed, unless otherwise provided by law or agreement (clause 3 of article 838 of the Civil Code of the Russian Federation). Consequently, in such cases, the parties, when concluding a bank deposit agreement, have the right to provide for the bank's right to unilaterally change the amount of interest accrued on the deposit.

Interest on the amount of a bank deposit is calculated from the day following the day it was received by the bank until the day preceding its return to the depositor or its debiting from the depositor's account on other grounds permitted by law. The terms and procedure for paying interest on the deposit (on what dates, monthly, quarterly, half-year, annually, with their capitalization or without capitalization) can be established by the bank deposit agreement. If this issue is not resolved in the agreement, interest on the amount of the bank deposit is paid to the depositor at his request at the end of each quarter, separately from the amount, and the interest not claimed during this period increases the amount of the deposit on which interest is calculated. When the deposit is returned, all interest accrued to that moment is paid (Article 839 of the Civil Code of the Russian Federation).

In the event that the claim for the return of the deposit is submitted before the end of the period for which the interest is calculated, the latter are calculated based on the actual time of using the client's funds and are paid simultaneously with the principal amount of the deposit.

Depositing funds into a bank under a bank deposit agreement entails significant risk for the depositor, in particular, the risk of not receiving the deposit amount back, as millions of Russian depositors have learned from their own bitter experience, who entrusted their money to unreliable banks. In order to prevent such consequences, the Civil Code of the Russian Federation regulates ensuring the return of deposits by banks (Article 840 of the Civil Code of the Russian Federation).

Banks are obliged to ensure the return of citizens' deposits through compulsory insurance, and in cases stipulated by law - in other ways.

Measures to ensure the return of deposits by banks depend on who is the depositor of the bank. If the depositor is a citizen, the return of the deposit is provided:

Compulsory insurance of deposits at the expense of funds federal fund compulsory deposit insurance, as provided for by Art. 38 of the Law of the Russian Federation "On Banks and Banking Activities";

Subsidiary liability of the Russian Federation, its constituent entities and municipalities... This rule is not of a general nature and applies only to deposits made to a bank, in the authorized capital of which the Russian Federation, constituent entities of the Russian Federation or the corresponding municipalities have more than 50% of shares or participation interests;

Voluntary deposit insurance in accordance with Art. 39 of the Law "On Banks and Banking Activities";

Through the use of traditional Russian civil law measures to ensure the fulfillment of obligations (forfeit, pledge, surety, etc.) 14.

It is possible for citizen depositors to submit claims for subsidiary liability of the Russian Federation, its constituent entities and municipalities, provided that they (depositors) have already submitted claims for the return of their deposits directly to the banks that received their deposits, but the banks' property turned out to be insufficient to meet these requirements (Art. 399 of the Civil Code of the Russian Federation).

If the depositor of the bank is a legal entity, the methods of ensuring the return are established by agreement of the parties when concluding the deposit agreement. In this case, such methods of securing obligations are used as forfeit, pledge, surety, bank guarantee... The deposit and retention due to their peculiarities cannot be used for this purpose.

In order to strengthen the protection of the interests of depositors, the law (clause 3 of article 840 of the Civil Code of the Russian Federation) obliged banks, when concluding bank deposit agreements, to provide depositors with information on the security of the return of the deposit. The methods of bringing this information to the clients are determined by the bank. Often this is done by posting relevant announcements in the bank's operating room.

If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as in the event of loss of collateral or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount determined by the agreement or the refinancing rate for the entire period of the actual use of the depositor's funds, as well as compensation for damages.

Usually, a deposit in a bank is made out in the name of the person who makes it. In other words, the depositor is the citizen or legal entity that has entered into a deposit agreement with the bank. But the law (Article 842 of the Civil Code of the Russian Federation) allows making a contribution to the bank in the name of another person who is not involved in the conclusion of an agreement with the bank. In some cases, the need for such a deposit is determined by the type of deposit. Such is, for example, pension contribution... In the Civil Code of the Russian Federation, Art. 841, according to which, unless otherwise provided by the bank deposit agreement, the funds received by the bank in the name of the depositor from third parties are credited to the deposit account, indicating the necessary data on his deposit account. Unless otherwise provided by the bank deposit agreement, a third party acquires the rights of a depositor from the moment he submits the first claim to the bank based on these rights, or expresses his intention to use such rights to the bank in a different way.

The indication of the name of the citizen or the name of the legal entity in whose favor the deposit is made is an essential condition of such a bank deposit agreement.

Having analyzed the content and responsibility of the parties under the bank deposit agreement, we note that the main obligations of the bank are to return the amount of the deposit and pay interest on it. In addition, when concluding a bank deposit agreement, he must provide the depositor with information about the security of the return of the deposit (clause 3 of article 840 of the Civil Code). The methods of bringing this information to the attention of clients are determined by the bank. An equally important obligation of the bank is to pay interest on the deposit. The next duty of the bank is to maintain bank secrecy. The main right of the bank is the ability, at its discretion, to own, use and dispose in its own interest of the sums of money transferred to the deposit. A depositor on a term or conditional deposit does not have the right to demand from the bank to carry out cashless payments from the deposit, since this requirement contradicts the essence of the term (conditional) deposit. The depositor has the right at any time to demand the return of the amount of the deposit made under any conditions. The next depositor's right is the ability to unilaterally, by default, extend the term of the term or conditional bank deposit agreement.

Under a bank deposit agreement(deposit) one party (bank) that has accepted the received from the other party (depositor) or received for it sum of money(deposit), undertakes to return the amount of the deposit and pay interest on it on the terms and in the manner prescribed by the contract.

The bank accepts funds from the depositor and places them in a deposit, which can be periodically replenished. The bank does not have the right to refuse to receive such amounts if the details of the depositor's account are indicated and if this is not expressly prohibited by the bank deposit agreement (for example, due to the insignificance of the amount). Having received the amount of the deposit from the depositor, the bank must open a deposit account and credit this amount to it.

The bank is obliged to pay the depositor interest for the use of his funds. The amount of interest is determined by the parties to the contract based on bank rates, the size of which depends on the amount and term of the deposit. Even in the absence of such a condition, the contract does not become gratuitous, but interest rate is determined based on the refinancing rate existing in the place of residence (location for legal entities) of the depositor. Interest is calculated by the bank from the next day after the deposit is received by the bank until the day it is returned to the depositor. The procedure for paying interest is fixed in the agreement, otherwise interest is paid at the request of the depositor at the end of each quarter, and unclaimed interest increases the amount of the deposit on which interest is calculated.

One of the main obligations of the bank is to return the amount of the deposit and the accrued interest to the depositor upon the expiration of the deposit term, and in cases provided for by law or the contract - and in case of early return of the deposit.

As a security for the return of deposits of individuals, banks are obliged to carry out their compulsory insurance. In accordance with the Law on Deposit Insurance, a compulsory deposit insurance system has been created. All banks that have the right to attract individuals' funds into deposits participate in it. Each bank is obliged to pay insurance premiums, at the expense of which the compulsory deposit insurance fund is formed.

The bank's failure to return the deposit gives the depositor the right to receive compensation from the compulsory insurance fund upon occurrence insured event(revocation of a banking license from the bank). Compensation is paid to the depositor in the amount of 100% of the amount of deposits, but not more than 190 thousand rubles.

The bank deposit agreement is terminated on the grounds provided for by the Civil Code, other laws, other legal acts or by agreement. The list of general grounds for termination of obligations is contained in Ch. 26 of the Civil Code, these include, for example, the liquidation of a bank or a depositor - a legal entity, the revocation of a license from a bank that allows it to attract funds into deposits, the expiration of the contract.

The contract can be terminated by mutual agreement of the parties. Such agreement is concluded in writing.

It is possible to terminate the contract unilaterally, when it is allowed by law or contract. At any time, the agreement can be terminated at the request of a depositor - an individual or under other circumstances agreed by the parties in the agreement.

If the bank fails to fulfill the obligations stipulated by the law or the bank deposit agreement to ensure the return of the deposit, as well as in case of loss of security or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount determined taking into account the refinancing rate, and compensation for losses.

67. Bank account agreement (concept, characteristics, parties, types of accounts, form, content). Types of bank accounts. Change and termination of the bank account agreement.

Bank account agreement- a consensual agreement, and although the client does not have an obligation at the time of the conclusion of the agreement to deposit or transfer funds to the account, he has other obligations, for example, to pay a commission for maintaining an account.

It is also, as a rule, reimbursable, since the client usually pays the bank a commission for carrying out settlement operations, and the bank charges interest on the funds it uses in the client's account. Under the agreement, the rights and obligations arise both for the bank, for example, transferring funds to the person specified by the account holder, and for the client, who must submit payment documents to the bank that meet the requirements of the law and banking rules, i.e. the contract is bilaterally binding.

Bank account agreement is a public agreement. The bank, being a company specially formed to conduct banking operations, including settlement, cannot refuse the client, with some exceptions, to conclude a bank account agreement. The terms of the contract are the same for all clients.

In the bank account agreement, the parties are named the bank and the client. A bank is a legal entity that carries out banking operations as an exclusive type of activity. At the same time, it is not only the bank that can conduct banking operations. Non-bank credit organizations also have such rights, but the range of their operations is limited. To carry out banking operations, any credit institution must have a license from the Bank of Russia.

The client in the bank account agreement can be individuals and legal entities. A citizen entering into a bank account agreement, as a general rule, must be legally capable. In some cases, the law allows individuals without full legal capacity to open accounts. These include minors between the ages of 14 and 18 who conclude a bank account agreement with the consent of their parents, adoptive parent, guardian, and in cases where the opening of an account is associated with the disposal of a deposit, earnings and other income, independently without their consent, and citizens limited court in legal capacity, concluding an agreement with the consent of the trustee.

Form: The Civil Code rules on the bank account agreement do not establish special requirements to the form of the contract, therefore, as a general rule, a simple written form must be observed. The contract can be concluded both by the exchange of documents and by drawing up a single document

Subject of the contract a bank account consists of actions for crediting funds to the client's account and performing, at the request of the latter, various types of banking operations: transferring funds to another account, settlement and cash services, etc.

The bank is obliged to carry out for the client all operations provided for by the law of this type of accounts, the banking rules established in accordance with it and the customs of business used in banking practice.

The bank guarantees the secrecy of the bank account and bank deposit, account transactions and customer information. Information constituting bank secrecy, can only be provided by the clients themselves or their representatives, as well as presented in the bureau credit histories on the grounds and in the manner prescribed by law. State bodies and their officials such information can be provided only in cases and in the manner prescribed by law.

Classification of bank accounts can be sag ty: a) for the object - ruble and foreign currency accounts; b) by subject - accounts of legal entities (non-credit organizations), which, in turn, are subdivided into settlement, current, budget; accounts of citizens carrying out entrepreneurial activity without forming a legal entity; accounts of individuals; accounts of credit institutions; c) according to the purpose of opening and the volume of operations carried out - settlement accounts(to carry out calculations for the main activity); special accounts (accounts for individual transactions).

The current account is used for crediting proceeds from the sale of products (works, services), making settlements with counterparties and other operations. The volume of transactions current account is limited in comparison with the calculated one (the maintenance of the management apparatus, money is issued for salaries). The accounts of legal entities that are allocated funds from the budget for targeted use are called budget accounts. Credit institution accounts are used if the client's and counterparty's accounts are located in different credit institutions and banks cannot conduct transactions on customer accounts without interacting with each other.

The bank account agreement is terminated at the request of the client at any time. In the absence of funds on the client's account and operations on this account for two years, the bank has the right to refuse to execute the bank account agreement, notifying the client in writing about this. The bank account agreement is considered terminated upon the expiration of two months from the date the bank sends such a warning, if funds have not been received on the client's account during this period. At the request of the bank, the bank account agreement may be terminated by the court in the following cases: when the amount of funds stored in the client's account is lower minimum size stipulated by banking rules or agreement; in the absence of transactions on this account during the year.

Under the agreement of bank deposit (deposit), one party (bank), which has accepted the money received from the other party (depositor) or received for it, the sum (deposit), undertakes to return the amount of the deposit and pay interest on it on the terms and in the manner prescribed by the agreement (p. . 1 article 834 of the Civil Code of the Russian Federation).

The bank deposit agreement is real, bilateral and onerous. If the depositor is a citizen, then the contract is recognized as public. Banks that have been granted such a right in accordance with a permit (license) issued by The central bank RF. Only banks participating in the system of compulsory insurance of deposits of individuals have the right to attract funds from citizens.

The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate or other document issued by the bank to the depositor (for example, by plastic card) that meet the requirements provided by law, banking rules or business customs.

Deposits are divided into 2 types:

1. Demand deposits... Variety - numbered deposits. Feature - a special procedure for the disposal of these deposits. The order to the bank (order) on the performance of credit or debit transactions on the deposit, signed by the depositor, instead of the name contains only the number of his deposit. Drawn up by a Numbered Contribution Agreement.

1. Time deposits- any deposits, under the terms of which the client cannot demand the return of the funds deposited by him before the onset of the circumstances specified in the contract. The most common are term deposits for a certain period of time, during which the bank is entitled to use these funds.

Types of term deposits:

Targeted (can be entered for 10 years in the name of persons under the age of 16);

Conditional (deposits made in the name of another person who can dispose of the deposit only if the conditions are met or upon the occurrence of circumstances specified by the depositor at the time of opening the account).

By the parties bank deposit agreement, according to Art. 834 GK, are bank and depositor.

Obligations of the bank:

- return to the depositor the amount of the deposit in the manner prescribed in the agreement.

- to pay him remuneration in the form of interest for the entire period of using other people's funds.

- provide the depositor with security for the return of the deposit in one of the ways provided by the law.

The legislation provides that the return of deposits of citizens can be ensured by:

a) compulsory insurance at the expense of the federal fund of compulsory deposit insurance

b) subsidiary liability of the Russian Federation, constituent entities of the Federation, as well as municipalities for bank debts - in cases established by law;

c) voluntary insurance of deposits (Article 39 of the Law "On Banks and Banking Activities");

d) the implementation of traditional methods of ensuring the return of deposits by the bank provided for in the agreement (clause 2 of article 840 of the Civil Code).

All deposits are subject to insurance, including those placed in the bank on the basis of a bank agreement

Bank's responsibility:

For accepting a deposit in violation of the procedure established by law;

For late return of the deposit amount;

For late payment of interest; failure to fulfill obligations to ensure the return of the deposit amount.

Question. Bank account agreement: concept, rights and obligations of the parties under the agreement, responsibility. Types of bank accounts. The procedure for debiting funds from the client's account. The order of the write-off.

According to the bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account holder), to fulfill the client's orders to transfer and issue the corresponding amounts from the account and conduct other operations on the account.

The agreement is consensual, bilateral and, as a general rule, compensated. The bank is obliged to conclude a bank account agreement with a client who has applied to open an account on the conditions announced by the bank for opening accounts of this type, but the bank account agreement cannot be considered public. Its conditions will be determined by the regime of the corresponding type of account - settlement, current or special (budget, currency, etc.), i.e. depend on the purpose for which the account is opened and the category of the client.

When concluding a bank account agreement, a bank account is opened for the client or a person indicated by him on the terms agreed by the parties. As a general rule, the withdrawal of funds from the account is carried out by the bank on the basis of the client's order. The bank is obliged to perform operations for the client provided for by the law of this type of accounts, banking rules and business customs applied in banking practice, unless otherwise provided by the bank account agreement. The client's funds are credited, issued or transferred no later than the day following the day the corresponding payment document is received by the bank, provided that more than short term not provided for by law, banking regulations or contract.

The bank is obliged to keep the secrecy of the bank account and bank deposit, account transactions and customer information. He does not have the right to determine and control the directions of use of the client's funds and establish other, not prescribed by law or by a bank account agreement limiting his right to dispose of funds at his own discretion. At the same time, the funds available on the client's account can be used by the bank with guaranteed observance of the client's rights to freely dispose of these funds.

The bank account agreement is terminated at the request of the client at any time. The bank has the right to refuse to execute the bank account agreement (by notifying the client in writing) if there is no funds on the client's account for two years and no transactions are made on this account.

TYPES OF BANK ACCOUNTS:

For universal and special;

Depending on the currency of the account;

Depending on the account holder;

Depending on the intended purpose of the funds;

Depending on the possibility of replenishment or partial withdrawal funds.

1. Non-refillable. During the entire term of the deposit additional contributions not accepted.

2. With the possibility of replenishment.

3. With the possibility of partial withdrawal of funds. - depending on the accrual of interest on bank accounts.

On this basis, bank accounts are divided into:

1. Monthly calculation of interest.

2. Accrual of interest at the end of the term.

3. Interim accrual of interest.

It is important to keep in mind that funds are debited from the account for claims related to one queue, in the order of the calendar order of receipt of documents.

Mandatory priority provided for in Art. 855 of the Civil Code of the Russian Federation, became the object of disputes related to the determination of the priority of claims tax authorities in relation to other requirements, in particular, on the transfer or issuance of funds for settlements on wages with persons working under an employment agreement (contract).