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Drawing up a bank account agreement. Opening and closing of personal accounts of the client Grounds for debiting funds from the account

Drawing up a bank account agreement. Opening and closing of personal accounts of the client Grounds for debiting funds from the account

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1.3 Procedure for concluding a bank account agreement

According to the general rules on the form of transactions, a bank account agreement must be concluded in a simple written form (clause 1, article 161 of the Civil Code). Failure to comply with the written form of the bank account agreement, unless otherwise provided by law, does not entail its invalidity, therefore, in this case, the consequences provided for in Art. 162 of the Civil Code. However, the analysis of Art. 846 and Art. 847 of the Civil Code, as well as the norms of special banking legislation, gives reason to believe that a bank account agreement cannot exist orally.

According to paragraph 1 of Art. 846 of the Civil Code, when concluding a bank account agreement, a bank account is opened for a client or a person indicated by him on the terms agreed by the parties. The procedure for opening a bank account is determined by banking rules. To formalize the opening of settlement, current and budget accounts, an application for opening an account of a specially established form is submitted to the bank, which is signed by the head and chief accountant of the account holder, and other documents (document of state registration, copies of constituent documents, a card of a specially established form with specimen signatures and print impression, etc.). The account is opened by a permission inscription on its opening on the application of the client, affixed by the executive body of the bank (director, president, etc.).

The legal meaning of the client's application for opening an account and the authorization letter for opening it differ depending on the method of concluding a bank account agreement. In the event that the parties sign a single document, the client's application for opening an account and the authorization inscription on its opening should be considered as actions of its participants in fulfilling mutual obligations arising from an already concluded agreement. According to the practice established in the banking system, the bank and the client conclude a bank account agreement by drawing up a single document signed by both parties.

If the bank account agreement is concluded by exchanging documents, then such an application with the relevant documents attached is an offer, i.e. a proposal to conclude a bank account agreement, and a permissive inscription on opening an account, affixed by the executive body of the bank, represents consent to the proposal to conclude an agreement (acceptance). At the same time, such a situation is currently extremely rare (practically only when opening some foreign currency accounts).

The rights and obligations of the parties under the bank account agreement arise regardless of whether the client has deposited funds into an open account. A different provision may be determined by law (deposit accounts in accordance with Article 834 of the Civil Code or by agreement of the parties.

In accordance with paragraph 2 of Art. 846 of the Civil Code, the bank is obliged to conclude a bank account agreement with a client who has proposed to open an account on the conditions announced by the bank for opening accounts of this type, which meet the requirements provided for by law and the banking rules established in accordance with it. He 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 in paragraph 4 of Art. 445 of the Civil Code.

So, a bank account agreement is a written transaction, in accordance with the terms of which the bank undertakes to accept and credit funds incoming to the account opened by the client (owner of this account), follow the client's instructions to transfer and issue the appropriate amounts from the account and conduct other operations by account (Article 845 of the Civil Code of the Russian Federation). The conclusion of the agreement is the basis for opening an account for the client. Opening an account is an actual action performed in pursuance of a bank account agreement. The bank account agreement is terminated at the request of the client at any time. At the request of the bank, the bank account agreement may be terminated by the court in the cases provided for by law. It generates rights and obligations for each party to the legal relationship. Accordingly, the basis of the obligation of one party is the fulfillment by the other party of the legal relationship of its counter obligations under the contract. Thus, the bank account agreement is a casual transaction.

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A credit institution, attracting temporarily free funds into deposits, accumulates significant attracted capital. In order to place funds, one of the most important passive banking operations is used - opening and maintaining a bank account.

Bank account – form of mediation Money accepted by the bank as deposits.

According to the bank account agreement the bank undertakes accept and credit funds received to the account opened by the client (account holder), execute the client's instructions on transferring and issuing the appropriate amounts from the account and performing other operations on the account.

Bank can use funds available on the account, guaranteeing the right of the client to freely dispose of these funds. The Bank is not entitled to determine and control the directions of use of the client's funds and establish other restrictions not provided for by law or the bank account agreement on its right to dispose of the funds at its own discretion.

The bank account agreement is concluded in simple writing(Clause 1, Article 161 of the Civil Code of the Russian Federation). As a rule, the bank and the client conclude single treaty bank deposit and bank account. Legislation on banks and banking activity allows the possibility of concluding a bank account agreement by offers(submission of an application and other documents for opening a bank account) and acceptance(permissive inscription of the head of the bank).

The bank account agreement is consensual, bilaterally binding, reimbursable. By general rule, the bank account agreement is termless, although the parties, when concluding it, have the right to stipulate the validity period of this agreement.

The parties to the agreement are:

- bankas a credit institution, the right to maintain bank accounts of which is recorded in the license for banking operations;

- client, which is a legal entity, an individual entrepreneur, an individual.

When opening a bank account, the client provides a package of documents necessary for the credit institution to carry out operations on the account. Reason for opening an account serves as a statement signed by the client - an individual, or the head and chief accountant of the client - legal entity.

Legal entities and individual entrepreneurs provide a credit institution with:

Certificate of state registration;

An extract from the unified state register of legal entities or the unified state register of individual entrepreneurs;

Notarized copies of constituent documents;

Certificate of registration with the tax authority;

Card with samples of signatures and seal imprints;

Documents (protocols general meetings, decisions of the founder, orders on appointment), confirming the authority of persons authorized to manage the funds on the account (as a rule, the general director and chief accountant of the legal entity).

The documents collected by the account holder constitute basis of banking client, which is maintained by a credit institution. Separately, in specialized file cabinets, cards containing samples of signatures and seal impressions are stored.

By concluding a bank account agreement, the credit institution and the client assume a number of rights and obligations that make up the content of the agreement. The account holder, as in the bank deposit agreement, is an economically weak party, therefore, when concluding the agreement, the main responsibilities are assigned to the credit institution. The client is obliged to comply with the procedure for opening and maintaining a bank account provided for by the current legislation, the requirements of the law, banking rules regarding the procedure for conducting non-cash settlements and processing settlement documents; as well as to ensure timely payment for bank services for transactions with funds on the account (in cases stipulated by the agreement). The client is not limited either in choosing the form of non-cash payments that best suits his interests; nor in the number of bank accounts (settlement, deposit and others) opened in any currency.

The bank has the right to provide credit to the client's bank account (Article 853 of the Civil Code of the Russian Federation).

The Bank undertakes to accept the client's funds to his bank account; open and maintain client accounts (crediting the client's bank account with money received for him and debiting funds from the account on the basis of the client's order); timely and correctly perform settlement and cash operations on behalf of the client, while observing the requirements established by law, the contract, banking rules and business practices regarding the procedure and terms for making payments. It should be noted that in the course of such operations, the funds are credited and debited by the bank no later than the business day following the day the relevant payment document is received by the bank. When carrying out settlement and cash transactions, the credit institution undertakes to keep banking secrecy about the account and operations on the client's account in accordance with paragraph 1 of Art. 857 part 2 of the Civil Code of the Russian Federation, Art. 26 of the Federal Law "On banks and banking activities".

Refuse a client the bank is not entitled to open a bank account, except in cases where the reason for the refusal is the inability to accept the client's funds or the refusal is allowed by the current regulatory legal acts.

One of the essential conditions of the bank account agreement is the payment of interest to the client for using the bank with the funds in the account. As a general rule, the amount of interest is credited to the account within the terms stipulated by the agreement.

According to the bank account agreement, the following can be accrued:

- accrued interest on passive operations of the bank (on operations related to raising funds) - interest due to be paid to the bank's clients on the funds attracted from them and recorded on the account for recording the bank's obligations to pay interest;

- interest paid on passive operations of the bank - interest credited to the accounts of the bank's customers (settlement, current), paid in the prescribed manner in cash from the bank's cash desk, debited from the correspondent account of the borrowing bank, credited to the correspondent accounts of the creditor bank;

- arrears of the bank to pay interest(overdue debt of the bank) - interest accrued by the borrower's bank on attracted funds in favor of legal entities, including banks, but not paid upon the due date established by the relevant agreement or upon the occurrence of obligations stipulated by the agreement.

Interest can be calculated in one of four ways in accordance with the terms of the agreement: using simple or compound interest formulas; using a fixed or floating interest rate. If the agreement does not specify the method of accruing interest, then accrual is carried out according to the simple interest formula using a fixed interest rate. When calculating interest, the value of the interest rate (as a percentage per annum) and the actual number of calendar days for which funds are attracted are taken into account. Accounting for operations to allocate the amounts of accrued interest is carried out by the "cash" method (the borrowing bank assigns accrued interest on funds raised to the implementation of the relevant accounting entries on the date of their payment) by the method or by the "accrual" method (all interest accrued in the current month is not later than the last business day of the current month are charged to the bank's expenses).

When closing bank accounts of bank customers, interest on attracted funds is accrued until the date of actual closing or transfer of the account, inclusive; balance on bank account at the same time, it is the sum of the balance of funds available on the account and the interest credited to the account upon its closure.

Credit organisation is responsible in case of untimely or incomplete crediting (debiting) to the client's account not only of the received funds, but also of accrued interest.

Closing of a bank account is carried out upon termination of the bank account agreement. According to the owner account it must be closed by a credit institution at any time. At the initiative of the bank bank account agreement can be terminated in judicial order in the following cases:

· if the amount of funds kept on the client's account turns out to be lower than the minimum amount stipulated by banking rules or the agreement, and will not be restored within a month from the date of the bank's warning about it;

· or in the absence of transactions on this account during the calendar year, unless otherwise provided by the terms of the agreement.

When closing a bank account, the balance of funds on the account is returned to the client or transferred to another account in the same or another credit institution at the direction of the client. The transfer of funds must be made no later than seven working days upon receipt of a relevant written application from the client; unpaid settlement documents that are in the card file of settlement documents not paid on time (card file No. 2) are returned to the claimants; the client is paid interest accrued on the day the account is closed.

Under 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 clients' orders to transfer and issue the appropriate amounts from the account and to carry out other operations on the account.

The Bank can use the funds available on the account, guaranteeing the right of the client to freely dispose of these funds. money bank account

Registration of the bank account agreement is carried out by drawing up and signing the agreement in the form of a single document.

The instruction of the Central Bank of the Russian Federation is defined. That in order to open a settlement, current or budgetary account, the following documents should be submitted to the bank: an application for opening an account, a copy of the decision to establish an organization or a memorandum of association, a card of sample signatures and a seal imprint. In addition, documents are submitted to the bank: on registration with the tax authority, on registration as a payer of insurance premiums for compulsory health insurance.

If an entrepreneur carries out his activities without forming a legal entity, settlement and other accounts are opened in his name.

The account can also be opened in favor of a third party.

The right to manage the account of a legal or natural person may be granted on the basis of a power of attorney.

The account owner and his creditor have the right to include in the contract a condition that gives the right to write off the amounts due to him without acceptance. In this case, the payer is obliged to inform the bank in writing about this condition and about his consent to such a write-off.

Settlement and cash services - the main type of banking services. This is indicated by the fact that a banking service agreement is often referred to as an agreement on settlement and cash services. Thus, within the framework of settlement and cash services, a credit institution can provide the following types of services:

- keeping records of funds on the account of a legal entity;
- crediting funds received from counterparties or other persons by bank transfer;
- execution of instructions of the organization for the transfer of funds to third parties;
- Receiving and issuing cash.

As part of the tax expenses of the costs of settlement and cash services, it is necessary that the terms of the contract determine the types of services that the bank will provide, the amount of remuneration due, as well as the timing and procedure for its payment.

As a rule, the bank writes off the payment for settlement and cash services without acceptance, on the last business day of the month. An exception is the remuneration for cash transactions - it is charged immediately after the transaction.

Remuneration for settlement - cash services:

- commissions for acceptance and recalculation of cash;
- commissions for the issuance of cash;
- fees for refusing to receive previously ordered cash;
- commissions for crediting funds to accounts;
- commissions for transferring funds from accounts;
- commissions for transfers without opening accounts (including transfers using various payment systems);
- fees for transfers using the Bank-Client system;
- fees for cancellation of payments;
- commissions on letter of credit operations (except for commissions for guaranteeing payment under a letter of credit);

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, the agreement was executed 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 the opening of a bank account is carried out 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 failure of the client to provide the necessary information when changing it identification features(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) 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:
- - 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 for an individual entrepreneur or to an individual 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 is obliged to inform the tax authority within three days of opening a bank account for an organization (individual entrepreneur) (as well as about 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 existence 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 dated 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 does not have the right 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, its permanent management body at its location; 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 a demand for compulsion to conclude an agreement and for compensation for damages (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 in an agreement between credit organizations and customers (in relation to the bank account agreement) must specify 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.

Drawing up a bank account agreement. Opening and closing of personal accounts of the client Grounds for debiting funds from the account

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1.3 Procedure for concluding a bank account agreement