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5. Drawing up agreements for opening an account for a client, procedures for opening and closing personal accounts, statements, refunds in case of incorrect crediting to the account

Acceptance of documents from Clients required for opening and closing a Bank Account, provided for by this Procedure, verification of the proper execution of documents, completeness of the information provided and their reliability is carried out by the Operator.

To open an account, the Operator determines whether the person who applied to open an account acts on his own behalf or on behalf of another person who will be the Client.

When opening a Bank Account for a Client, the Operator checks whether the Client has legal capacity (capacity), identifies the Client, the Client's Representative, the beneficiary, takes reasonable and accessible measures in the circumstances to identify the beneficial owner.

To open a Bank Account, the Client provides the following documents:

Identification document;

The Trustee submits a Power of Attorney confirming that he has the authority to open a Bank Account to manage funds in the Bank Account, as well as an identity document;

Notarized Card;

Certificate of registration with the tax authority;

If the Client is a non-resident of the Russian Federation, in addition to the above documents, presents a migration card, as well as a document confirming the right of a foreign citizen or stateless person to stay (residence) in the Russian Federation;

The Operator enters all information into the ABS in the Questionnaire generated electronically. The Operator informs the Client that in case of changes in the information provided to the Bank when opening a Bank Account, the Client is obliged to provide the Bank with documents (copies thereof) confirming the changes in this information.

Documents coming from the Client for submission directly to the Bank (application for opening/closing an account, application for confirmation of the address of the actual place of residence of the Client) are provided by the Client in the original.

At the same time, the ABS automatically records the opening of a Bank account in the electronic Book of registration of open personal accounts.

The book of registration of open personal accounts of clients is formed in accordance with the requirements of the Accounting Policy of the Bank and regulatory documents of the Bank of Russia (Regulations of the Bank of Russia dated 16.06.2012 No. 385-P), is kept in the Bank, the Branch of the Bank in electronic form in the ABS and printed on every first day of the year.

If the Bank erroneously credited funds to another client account, it is obliged, immediately after discovering its mistake, to transfer these funds to the account of the recipient to whom they were intended. At the same time, the bank is obliged to immediately send a notification to the improper recipient about the implementation of an erroneous transfer and the need to return the specified amount within three business days from the date of receipt of such notification.

If the Client erroneously credited funds to another account, the Bank is obliged, at the request of the Client, to immediately send a notification to the improper recipient about the erroneous transfer to him and the need to return the specified amount within five business days from the date of receipt of such notification.

The bank account agreement can be terminated:

1. By agreement of the parties.

2. According to the client's request.

3. In the event of the Bank's unilateral refusal to execute the Bank Account Agreement in the manner and in the cases provided for by law.

Upon receipt of the Application from the Client to close the account, the Operator:

Verifies the powers of the persons who signed the Application;

Identifies the Client by ordinary visual inspection;

Puts a mark / stamp on the acceptance of the Application indicating the date, position and last name, first name, patronymic, signs the Application;

Closing of a bank account is carried out by making an entry on the closure of a personal account in the electronic book for registering open accounts no later than the working day following the day of termination of the Bank Account Agreement.

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According to paragraph I, Art. 161 of the Civil Code of the Russian Federation, a bank account agreement must be concluded in a simple written form. Previously, an agreement was formalized mainly by submitting an application with the documents required for opening an account, and affixing a permissive inscription of an authorized person of a credit institution on opening an account on the application. Nowadays, it is also common to draw up a single document signed by both parties and containing the terms of the account.

The conclusion of a bank account agreement, as noted, is accompanied by the opening of an account for the client or another person specified by him on the terms agreed by the parties (clause 1 of article 846 of the Civil Code of the Russian Federation). The procedure for opening bank accounts is regulated in detail in Instruction No. 28-I, which, in particular, establishes that a bank account is opened if the bank:

1) the client has been identified; it should be noted that the bank's obligation to identify the client is not limited to the moment of conclusion of the bank account agreement and remains throughout the entire period of this client's stay at the settlement and cash services; therefore, in particular, the client's failure to provide the necessary information when his identification signs change (location, etc.) may serve as a basis for the bank to terminate the bank account agreement (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 27, 2010 No. 1307/10);
2) received all Required documents(p. 1.2, 1.5); Thus, in order to open a current account for a legal entity established in accordance with the legislation of the Russian Federation, the following are submitted to the bank:
- - certificate of state registration;
- - founding documents;
- - issued licenses (permits), if they are directly related to the client's legal capacity to conclude a bank account agreement of the appropriate type (for example, a correspondent account cannot be opened for a legal entity that does not have a CBR license for the right to conduct banking operations);
- - a card with samples of signatures and seal imprints (hereinafter referred to as the card);
- - documents confirming the authority of the persons indicated in the card to dispose of funds (and, if there is a corresponding clause in the bank account agreement, documents confirming the authority of persons entitled to use an analogue of a handwritten signature);
- - documents confirming the powers of the sole executive body;
- - a certificate of registration with the tax authority or a document issued by the tax authority in established cases in order to open a bank account (clause 4.1).

To open a current account, an individual entrepreneur or an individual engaged in private practice must submit:

- an identity document of an individual;
- card;
- documents confirming the powers of the persons indicated in the card to manage funds, if such powers are transferred to third parties (and if there is a corresponding clause in the bank account agreement, documents confirming the powers of persons entitled to use an analogue of a handwritten signature);
- certificate of registration with the tax authority;
- certificate of state registration as an individual entrepreneur;
- issued licenses (patents) (clause 4.7).

The opening of a bank account is completed, and the bank account is opened with the making (no later than the business day following the day of the conclusion of the agreement) of the corresponding entry in the Book of Registration of Open Accounts (clause 1.3 of Instruction No. 28-I).

The bank must inform the tax authority within three days of opening a bank account for an organization (individual entrepreneur) (as well as closing an account or changing account details) within three days (clause 1, article 86 of the Tax Code of the Russian Federation). However, even before such notification, operations to withdraw (transfer) funds from the account are not prohibited.

In practice, the conditions for opening an account (the price of bank services, the amount of interest paid to them, etc.) are developed and announced by the bank; at the same time, he is obliged to conclude an agreement on the announced conditions that meet the requirements of the law and banking rules with the client who applied to him (paragraph 1, clause 2, article 846 of the Civil Code of the Russian Federation). The foregoing, subject to the provisions of Art. 428 of the Civil Code of the Russian Federation, allows under certain circumstances (the presence of a standard form of an agreement, the possibility of changing the conditions contained therein, etc.) to qualify the concluded bank account agreement as an accession agreement (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 25, 2006 No. 2718/06, Definition Constitutional Court of the Russian Federation dated May 24, 2005 No. 170-O).

Despite the fact that the legislator does not directly classify the bank account agreement as public, there is a rule by virtue of which, under certain circumstances, the bank is not entitled to refuse to open an account. Such circumstances (in the aggregate) are the following points:

1) the performance of operations on the account, the opening of which the client insists, is provided for by law, the bank's constituent documents and the permit (license) issued to the bank:
2) the bank has the opportunity to accept the client for banking services;
3) legal acts do not allow the bank to refuse to open an account; cases in which credit institutions refuse to open accounts, in particular, are provided for in clause 12 of Art. 76 of the Tax Code of the Russian Federation (the presence of a decision of the tax authority to suspend operations on accounts), clause 5.2 of Art. 7 of the Federal Law "On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism" (the absence of a legal entity at its location, its permanent management body; the presence of information about participation in terrorist activities in relation to an individual or legal entity, etc.). ).

Unreasonable evasion of the bank from concluding an agreement gives the client the right to apply to the court with claims to compel to conclude an agreement and to compensate for the losses caused (clause 2 of article 846 of the Civil Code of the Russian Federation, clause 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 25).

These provisions have given many scientists a reason to interpret the bank account agreement as public or close to public. A number of authors consider only contracts with the participation of citizens to be public, based mainly on the fact that paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 29, 1994 No. 27 "On the practice of considering cases on consumer protection by courts" allows the application of legislation on the protection of consumer rights to the relationship of opening and maintaining accounts of citizens-citizens in order to meet the needs not related to the implementation of entrepreneurial activities.

And yet, it seems that a bank account agreement cannot be classified as a public agreement, because the Civil Code of the Russian Federation does not exclude situations when the conditions announced by the bank can be reviewed by the parties when concluding the agreement; moreover, the bank is only bound by the terms and conditions that have been declared to it. On the basis of paragraph 2 of Art. 426 of the Civil Code of the Russian Federation, all conditions of a public contract must be the same for all consumers. Many scientists agree with the position that denies the extension of the public contract regime to the bank account agreement, in particular M. I. Braginsky2.

The content of the bank account agreement (as an agreement) is formed by its conditions. By virtue of the Civil Code of the Russian Federation, the condition on the subject of the contract is essential, which should be understood as settlement and other services provided by a credit institution to a client. Judicial practice also proceeds from this. Thus, in the definition of the Supreme Arbitration Court of the Russian Federation dated May 31, 2010 No. VAC-2942/10, the subject of a bank account agreement is "actions of the bank to carry out settlements performed in favor of the account holder."

Other essential terms of the bank account agreement follow directly from Art. 30 of the Banking Law, according to which the agreement between credit institutions and customers (in relation to the bank account agreement) must contain such essential conditions as:

- the cost of banking services;
- terms for the performance of banking services, including the terms for processing payment documents;
- property liability of the parties for violations of the contract, including liability for violation of obligations on the timing of payments;
- the procedure for terminating the contract.

The designated provisions of Art. 30 of the Law on Banks cause criticism: firstly, the cost of banking services by virtue of Art. 851 of the Civil Code of the Russian Federation may not be established in the contract at all; secondly, it was hardly worthwhile to endow the conditions on liability and the procedure for terminating the contract with the status of essential, because there are numerous legislative rules of an imperative and dispositive order in this regard.

1.4 art. 845 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)) and the client (account holder). Any individual or legal entity can be a client under this agreement, however, the regime of bank accounts opened for different types of entities is different. So, for example, current accounts are not opened for legal entities, and settlement accounts for branches of legal entities or citizens who do not have entrepreneurial status. Bank account agreement form This agreement is concluded in writing by signing a single document or by submitting an application by the client and making an authorization letter from the head of the bank on the application. In accordance with the provisions of Chapter 2 of Instructions of the Bank of Russia dated September 14, 2006 N 28-I

"On the opening and closing of bank accounts, accounts on deposits (deposits)"

Banks are opened in the currency of the Russian Federation and foreign currencies the following types of bank accounts: — trust management accounts; — special bank accounts; — deposit accounts of courts, divisions of the bailiff service, law enforcement agencies, notaries; - accounts on deposits (deposits). Conclusion of a bank account agreement When concluding a bank account agreement, a bank account is opened for the client or the person indicated by him on the terms agreed by the parties. The bank is obliged to conclude a bank account agreement with a client who has applied with an offer to open an account on the conditions announced by the bank for opening accounts of this type, which comply with the requirements provided for by law and the banking rules established in accordance with it. The bank is not entitled to refuse to open an account, the performance of relevant transactions for which is provided for by law, the bank's constituent documents and the permission (license) issued to it, except in cases where such a refusal is caused by the bank's inability to accept for banking services or is allowed by law or other legal acts . In case of unreasonable evasion of the bank from concluding a bank account agreement, the client has the right to present him with the requirements provided for by paragraph 4 of Article 445 of this Code.

The concept and content of the bank account agreement

Chapter 1

necessary to identify the client and the client's representative. In accordance with paragraph two of clause 5.2 of Article 7 of Federal Law N 115-FZ, if there are suspicions that the purpose of opening an account is to carry out operations for the purpose of legalizing (laundering) proceeds from crime or financing terrorism, a credit institution, in accordance with the rules internal control considers the existence of grounds for refusing to conclude an account agreement of the corresponding type. Several accounts may be opened for the client on the basis of one account agreement of the corresponding type, if this is provided for by the agreement concluded between the bank and the client. 1.3.

No. 1307/10); 2) all necessary documents have been received (clauses 1.2, 1.5); Thus, in order to open a current account for a legal entity established in accordance with the legislation of the Russian Federation, the following are submitted to the bank: - a certificate of state registration; - issued licenses (permits), if they are directly related to the client's legal capacity to conclude a bank account agreement of the appropriate type (for example, a correspondent account cannot be opened for a legal entity that does not have a CBR license for the right to conduct banking operations); — a card with samples of signatures and an imprint of the seal (hereinafter referred to as the card); - documents confirming the authority of the persons indicated in the card to dispose of funds (and if there is a corresponding clause in the bank account agreement - documents confirming the authority of persons entitled to use an analogue of a handwritten signature); — documents confirming the powers of the sole executive body; - a certificate of registration with a tax authority or a document issued by a tax authority in established cases for the purpose of opening a bank account

Accession to the Rules is made by issuing (submitting to the Bank) one of the following written documents: “Application for opening an account”, which is submitted together with the documents provided for opening an Account in accordance with the list approved by the Bank (when opening a new Account with the Bank); “Agreements on accession to the Rules” (if the Client has a valid bank account agreement(s) and desires to join the Rules) – Annex 1 to the Rules. To conclude an agreement and open a bank account Client (Legal entity) Application for opening an account; Card with samples of signatures and seal imprint (Form No. 0401026.

Loan, bank account and card agreement - mixed agreement

Therefore, an account opened by a bank is not a loan account, it is bank account, for the service of which the collection of a commission is lawful. As follows from the borrower's application form for obtaining a credit Tinkoff cards Bank, she invites the bank to conclude an agreement with her for the provision and maintenance of a credit card on the terms established by the offer, under which the bank will issue a credit card in her name and set her a debt limit.

Notarized copies of certificates will be needed when making a transaction for the purchase of a residential property, as well as when obtaining a mortgage loan. Step 2. After receiving notarized copies, the owner of the housing certificate must submit it to the Bank at the place of purchase of the residential premises or at the place of residence of the owner of the housing certificate to conclude an agreement and open a bank account. Social payment is provided to the holder of a housing certificate in a non-cash form by crediting federal budget funds to the bank account of the holder of a housing certificate opened with an authorized bank.

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These obligations can be implemented only by concluding a bank account agreement with the organization. For citizens, including those engaged in entrepreneurial activities, the obligation to make payments only by bank transfer is not established. Enterprises may have cash in their cash desk within the limits established by banking institutions in agreement with the heads of enterprises, and are obliged to deposit all cash in excess of the established limits on the balance of cash in the cash desk in the manner and terms agreed with the bank institution. Organizations and citizens engaged in entrepreneurial activities have the right to open accounts in any bank at their location (registration) or in any other bank.

Lecture 10

depending on the nature of the operations performed on them. Also, these accounts differ in the order of their opening and the rules for performing banking operations. The parties under the bank account agreement are the bank and the client.

On the side of the bank, both the bank itself and other institutions licensed on the basis of national rules and recognized legal entities who are granted the right to raise funds from legal entities and individuals and place them on their own behalf on the terms of repayment, payment and urgency, as well as to carry out other banking operations.

Non-denominated rubles. Later, on July 3, 1997, this resolution was declared invalid2 and in accordance with Art. 34 and 35 of the Law

"On the Central Bank of the Russian Federation (Bank of Russia)"

the functions of organizing cash circulation and conducting monetary policy, setting the maximum limit for cash settlements between legal entities are assigned to the powers of the Bank of Russia.

Conditions of the bank deposit and bank account agreement: what should you pay attention to?

The Civil Code of the Russian Federation establishes rules on the protection of bank secrecy. Information that constitutes banking secrecy may be provided directly to customers or their representatives. This information may be provided to state bodies and officials only in cases and in the manner prescribed by federal law. In case of disclosure of this information, the depositor, whose rights are violated, has the right to demand compensation from the bank for the losses caused. The bank can use the funds available on the depositor's account, guaranteeing his right to freely dispose of these funds.

Bank account agreement

The bank is obliged to conclude a bank account agreement with any person who has applied to it with an offer that complies with the conditions announced by the bank for opening accounts of this type, the law and banking rules. At the same time, the bank is not entitled to refuse to open an account, the performance of operations on which is provided for by law, the bank's constituent documents and its license, except in cases where such a refusal is due to the bank's inability to accept this person for servicing, or when such refusal is allowed by law or other legal acts.

Different interpretation of the rules of paragraphs 1 and 2 of Article 846 of the Civil Code of the Russian Federation in practice led to conflicting conclusions about whether a bank account agreement is public. It seems to be a more correct point of view that a bank account agreement cannot be recognized as public on the following formal grounds. Art. 426 of the Civil Code of the Russian Federation contains two features of a public contract.

Firstly, a commercial organization is obliged to conclude such an agreement at the request of the consumer, if it has the appropriate capabilities.

Secondly, the price of goods, works and services, as well as other conditions of a public contract, are established the same for all consumers, except in cases where the law and other legal acts allow the provision of benefits for certain categories of consumers.

The first sign of a public contract in the legal regime of a bank account agreement is available (clause 2 of article 846 of the Civil Code of the Russian Federation), and the second is absent.

By general rule Clause 1 of this article, when concluding a client's bank account agreement, a bank account is opened on the terms agreed by the parties. However, an exception is possible when a commercial bank has previously developed and announced a bank account agreement of a certain type, containing the same conditions for all applicants (the price of bank services, the amount of interest paid by the bank for the use of funds in the account, etc.).

In this case, the bank, in accordance with par. 1 p. 2 art. 846 of the Civil Code is obliged to conclude such an agreement with any client who has made an offer to open an account on the specified conditions. At the same time, the bank's refusal to conclude such a bank account agreement is allowed only in the cases established by par. 2 p. 2 art. 846 GK.

Drawing up a bank account agreement

In practice, a bank account agreement is drawn up, as a rule, in two ways: by drawing up and signing an agreement in the form of a single document; without such a document. The absence of a bank account agreement in the form of a single document signed by the parties does not mean the absence of a contractual relationship. The submission by the client of an application for opening an account is an offer, and the permissive inscription of the head of the bank is an acceptance. Such an order can be given both in the form of a separate document and on the client's application for opening an account.

In paragraph 1 of Art. 846 of the Civil Code of the Russian Federation states that an account can be opened not only for a client, but also for a person indicated by him. This means that it is permissible to conclude a bank account agreement both in favor of the client and in favor of a third party (Article 430 of the Civil Code).

Clause 2 of this article contains a rule on the obligation of the bank to conclude a bank account agreement at the request of the client, except for the cases provided for by law or banking rules established in accordance with it. The legislation contains rules providing for the obligation of the bank to refuse the client to conclude an agreement in certain cases.