LEGISLATIVE COLLISIONS OF LEGAL REGULATION OF ADMINISTRATIVE ENFORCEMENT WITHIN ACTIVITIES OF NATIONAL BANK OF UKRAINE AND METHODS OF THEIR ELIMINATION
DOI:
https://doi.org/10.18372/2306-1472.68.10927Keywords:
administrative enforcement, bank liquidation, bank regulation, constitutional validity, means of control and supervision, National BankAbstract
Purpose: Determining legislative conflicts and gaps related to imposing sanctions by the National Bank of Ukraine to banks as well as developing the grounded offers on how to eliminate the respective legal defects. Results: Comparing the aim of banking regulation assigned to the NBU and the aim of regulation in other areas of the state economy (e.g., financial, environmental protection and safety and etc.) allows assuming that the state has vested the NBU with a ‘superfunction’ that would be more appropriate for the Verkhovna Rada (Parliament) of Ukraine as the single state legislative authority authorized to create the system of the rules of law in different areas of the social life of the country (including the banking sector). Based on the general legal doctrine, we consider that the provision of the Law of Ukraine on the National Bank of Ukraine stipulating the primary aim of banking regulation, especially the development of the system of rules, should be amended by replacing the term ‘banking regulation’ by the category ‘banking legal regulation’ in particular. Therewith, it should be defined that the latter aims at harmonizing social relations in the banking sector. We also thing that it is reasonable to – first and foremost – define the term ‘banking legal regulation’ and its meaning in the basic sectoral legislative act – the Law of Ukraine on Banks and Banking. In this article accentuated that the most controversial direction of banking regulation is ‘the responsibility for the violation of banking laws.’ Having analysed the effective laws, we can state that today the NBU covers the powers at three levels with different organization: first, making a decision on bank liquidation; second, implementing this decision (particularly by registering the bank liquidation in the Unified State Registry of Legal Entities and Individual Entrepreneurs); third, controlling and supervising the process of the implementation of the bank liquidation decision. Furthermore is concluded that the legal status of the NBU in the banking sector (related to banking activity) has peculiarities, which – in total – consecutively define this state authority as: 1) a regulator; 2) a controlling and supervising body; 3) a body with judicial powers. Discussion: Comparative legal research contributed to the conclusion that the legal model that is formulated by legislative acts and is a legal basis for the banking sector conflicts with the Constitution of Ukraine. To solve the detected legal conflict is proposed to implement two main methods.
References
On Compliance with Minimum Authorized Capitals of Banks. Resolution of the Board of the National Bank of Ukraine, No. 464, dated August 6, 2014. Official Herald of Ukraine (dated December 19, 2014), 2014, No. 99, p. 94, Article 2879. (In Ukrainian)
On Increase in Capital of Banks of Ukraine: Resolution of the Board of the National Bank of Ukraine, No. 58, dated February 4, 2016. Official Herald of Ukraine (dated March 11, 2016), 2016, No. 18, p. 513, Article 750. (In Ukrainian)
Vlasova, T. M. Procedural features of Administrative Enforcement within Activities of National Bank of Ukraine. Legal Bulletin Ukrainian academy of a banking. 2012, No. 1(6), p. 68-73 (In Ukrainian)
Mishchenko, V. I.; Naumenkova, S.V. Banking Supervision. Kyiv: Centre of Scientific Research of NBU, University of Banking at NBU, 2011. - 498 p., p.47-48 (In Ukrainian)
Selivanov, A. O., et al. Banking Law of Ukraine. Kyiv: Publishing House "In Yure", 2000. - 368 p. (In Ukrainian)
Orlyuk, O. P. The banking system of Ukraine. Kyiv: Yurinkom Inter, 2003. 240 p. (In Ukrainian)
Shpachuk, V. V. State banking system anticrisis management: theory, methodology, practice. Kyiv: VPTs AMU, 2012. 304 p. (In Ukrainian)
Thammarak, M. Central Banking: Theory and Practice in Sustaining Monetary and Financial Stability (Wiley Finance), Solaris South Tower, Singapore: John Wiley & Sons Singapore Pte. Ltd., 2014. - 320 p.
Dincer, N.N.; Eichengreen, B. Central bank transparency and independence: updates and measures. International Journal of Central Banking. 2014, Vol. 10 (1), pp. 189-253.
Hadjiemmanuil, C. Bank resolution policy and the organization of bank insolvency proceedings: critical dilemmas, in Who pays for bank insolvency? David G. Mayes, Aarno Liuksila, New York: Palgrave Macmillan, 2004. рp. 272-330. 381 р.
Siklos P., Bohl M., Wohar M. Сhallenges in central banking: the current institutional environment and forces affecting monetary policy, New York: Cambridge University Press, 2010. 398 p.
Skakun, O. F. Theory of Law and State. - Kyiv: Alerta, 2013. - 524 p., p. 254 (In Ukrainian)
Dmytrenko, Iu. M. Financial and Legal Basis for Activity of National Bank of Ukraine. PhD diss., Kharkiv, 2012, 224 p., p. 114 (In Ukrainian)
Constitution of Ukraine, No. 254к/96-VR, dated 28 June 1998. Official Herald of Ukraine (dated October 1, 2010), 2010, No. 72/1, p. 15, Article 2598 (In Ukrainian)
On National Bank of Ukraine. Law of Ukraine, No. 679-XIV, dated May 20, 1999. Official Herald of Ukraine (dated July 2, 1999), 1999, No. 24, p. 1087 (In Ukrainian)
Vlasova, T. M. Administrative Enforcement within Activity of National Bank of Ukraine. PhD diss., Kyiv, 2012. - 214 p., p. 29 (In Ukrainian)
On Banks and Banking. Law of Ukraine, No. 2121-III, dated December 7, 2000. Official Herald of Ukraine (dated January 26, 2001), 2001, No. 1-2, Part 1, p.1 (In Ukrainian)
Economic Procedural Code of Ukraine, No. 1798-XII, dated November 11, 1991. Bulletin of Verkhovna Rada of Ukraine (dated February 11, 1992), 1992, No. 6, Article 56 (In Ukrainian)
Resolution of Constitutional Court of Ukraine, No. 8-rp/2002, dated May 7, 2002. Bulletin of the Constitutional Court of Ukraine, 2002, No. 2, p. 29 (In Ukrainian)
Resolution of Constitutional Court of Ukraine, No. 15-p/2002, dated July 9, 2002. Bulletin of the Constitutional Court of Ukraine, 2002, No. 4, р. 17 (In Ukrainian)
On Constitutional Court of Ukraine. Law of Ukraine, No. 422/96-VR, dated October 16, 1996. Voice of Ukraine (dated October 22. 1996). 1996. (In Ukrainian)
Moreno, R. Reforming China’s Banking System. FRBSF Economic Letter, No. 2002-17, May 31. p. 1-4.
