10.1. International monetary relations as an object of government regulation.

At the end of the 20th century, the level of globalization reached such a level that the ability of states to achieve economic and social recovery on their own was sharply reduced. Therefore, an integral feature of the relations between states of the modern period is the desire for monetary cooperation and integration in the monetary and financial sphere. This process entailed the rapid development of international monetary relations, which are a specific object of government regulation. In the literature, international currency relations are defined as a set of social economic and legal relations that develop in the process of circulation and functioning of currency values ​​in the world economy and mediate the mutual exchange of results of activities of national economies (goods, works, services, rights to the results of intellectual activity), as well as investment activity 24 State regulation of international monetary relations is carried out through the foreign exchange policy of states. The internal policy of a particular state is aimed at creating its own currency. International monetary relations serve international trade and investment movements. They arise when granting and receiving loans, making currency purchase and sale transactions, etc. Through balances of payments, exchange rates, and settlement transactions, international currency relations have an active impact on the entire world economy. 24 Tosunyan G.A., Emelin A.V. Currency law of the Russian Federation. Tutorial. M., Case. 2002. P. 14. legal regime through the establishment of economic, legal and administrative regulatory measures. State regulation is aimed at developing and strengthening international currency relations, protecting the interests of public and private entities in the currency field, and preventing offenses in the field of international currency relations. State regulation of international monetary relations is characterized by duality. On the one hand, the state interacts with other public entities in international monetary relations regarding the establishment of general rules of behavior for both public and private entities. States enter into these relations on the basis of voluntariness and freedom of expression. The main legal means of implementing relations within the framework of international monetary law is the method of harmonizing rules in international monetary relations, which contributes to the unification of the international monetary legal regime. On the other hand, state regulation is aimed at establishing a national monetary and legal regime, which is a specific procedure for the functioning of currency relations established by the law of the Russian Federation. The national monetary and legal regime does not exist autonomously; it is subject to changes occurring within the framework of international monetary relations, since it interacts with other national monetary systems. Public entities interact with each other regarding exchange rates, convertibility conditions, legal status of non-residents, etc. The real embodiment of the results of such relationships is found in the adoption of international legal norms that affect the internal monetary and legal regimes of states. In international monetary relations, international legal regulation greatly influences the nature and content of domestic legal regimes. Domestic legal regimes in the currency field are unified. The sphere of manifestation of international monetary relations is the international monetary system. 25 Coordination of national and international monetary systems is the task of public entities in the process of adoption and application of international law in the monetary sphere. . In international monetary relations, national and regional currencies of all states function. On the one hand, states act in relation to each other as equal partners in the system of world economic relations, realizing their economic (monetary) sovereignty. On the other hand, in international monetary relations the interests of different states collide. Developed countries strive to ensure the advantages of their national or collective currency in the international monetary system. 25 Historically, the first world monetary system is the Paris Monetary System. Legally, it was formalized by an interstate agreement at the Paris Conference in 1867, which recognized gold as the only form of world money. The period of the Paris monetary system as a whole was characterized by relative political stability in the world and rapid economic growth of states. The second currency system is the Genoese currency system, formalized in 1922 at the Genoa International Economic Conference. Its basis was gold and mottos (mottos are foreign currencies intended for international payments and convertible into gold). The third world monetary system, Bretton Woods, was formalized by an agreement between countries (44 countries) at a conference on monetary and financial issues, which took place in 1944. The basis of this system was the US dollar and gold. It was characterized by the following main features: the parity of its currencies was established in relation to the US dollar; Member countries had the right to exchange their dollars for American gold at the official fixed price ($35 per ounce of gold (in an ounce there is 31.1 g of pure gold)). In August 1971, after Great Britain's demand to convert dollars into gold was refused by the United States, the gold dollar standard system ceased to exist. After 1971, a new world monetary system (Smithsonian) appeared - the dollar standard. The dollar standard system was based on pegging currencies to the US dollar. The main difference between the dollar standard system and the gold-dollar standard was the US refusal to exchange the dollar for gold. During this period, the dollar reserves of the rest of the world increased significantly, which, given fixed exchange rates, led to increased inflation. Countries had a desire to abandon their peg to the dollar, and in 1973 the dollar standard system was abolished and a period of free choice of exchange rates began. The elements of the national currency system are: subjects of currency legal relations; objects of currency legal relations; national currency exchange rate regime; currency regulation and currency control. One of the most important characteristics of the monetary and legal regime of a state is the exchange rate, which is the price of the monetary unit of one country, expressed in the monetary units of other countries or in international currency units (SDR, euro). The amount of national and foreign currency in the state’s economy must be balanced. This means that a certain relationship is formed between national and foreign currencies under the influence of market and administrative factors - the price of one currency in units of another currency. This ratio is called the exchange rate. The exchange rate can be formed under the influence of predominantly market mechanisms, or it can be strictly set by the state. In the first case, the national monetary system is characterized by openness to international monetary relations. In the second case, the state, with a fixed exchange rate, protects the national currency system from external currency markets. By influencing the exchange rate, the state thereby manages export-import relations. So, if the national currency is weaker and the exchange rate fluctuation exceeds certain limits, the state (usually the central bank) buys the national currency in exchange for foreign currency. A weakening national currency makes it more profitable to export goods than to import. The strengthening of the national currency, on the contrary, makes imports more profitable. Thus, if you influence the exchange rate unilaterally, this will inevitably affect the public and private interests of other subjects of international monetary relations, which can cause conflicts in the currency and foreign economic spheres. In accordance with Art. 53 Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” The Bank of Russia establishes and publishes official quotes 26 Official rates of other currencies to the Russian ruble are calculated and established by the Bank of Russia on the basis of the official exchange rate of the US dollar to the Russian ruble, established in accordance with the Regulations, and quotations of these currencies against the US dollar on the international currency markets of the current working day, on the exchange and over-the-counter segments of the domestic foreign exchange market, as well as official exchange rates of the US dollar against the specified foreign currencies in relation to the ruble. The procedure for establishing official rates is determined by the Regulations on the establishment by the Central Bank of the Russian Federation of official rates of foreign currencies to the Russian ruble. The exchange rates of the main currencies used in the Russian Federation in foreign economic settlements and the SDR rate are established in the following order. Every working day, no later than 13:00 Moscow time, the Bank of Russia sets the official exchange rates of the main currencies used in the Russian Federation for foreign economic settlements (with the exception of the rates of national currencies of the countries participating in the Economic and Monetary Union), and SDR to the Russian ruble. The official SDR to Russian ruble exchange rate is calculated by the Bank of Russia based on the official US dollar to Russian ruble exchange rate established in accordance with the Regulations and the US dollar to SDR exchange rate established by the International Monetary Fund on the previous business day. 26 Determining and establishing the exchange rate of a foreign currency to a national one is called a quotation. Quotation is carried out using two methods – direct and indirect. In direct quotation, the value of a unit of foreign currency is expressed in national currency. For example, 1 dollar = 30.45 rubles. With indirect quotation, the value of a unit of national currency is expressed in a certain amount of foreign currency. For example, 1 rub. = 0.03 dollars in currencies established by the central (national) banks of the respective states. Information on official exchange rates of foreign currencies to the Russian ruble is sent for distribution in the media. In particular, information on the approved official exchange rates of foreign currencies to the Russian ruble is published in Rossiyskaya Gazeta and Vestnik Banka Rossii. The effectiveness of government regulation of international monetary relations largely depends on the level of integration in the monetary sector. World experience shows that there are several ways for states to interact in the currency field. The need for European monetary integration is explained by the multilateral nature of economic relations in Europe, which has created the need to provide a system of multilateral settlements. In 1950-1959 The European Payments Union was in effect. In the 70s, with the transition to floating rates, European currencies began to be characterized by individual rates. In order to maintain the stability of multilateral settlements, the Community countries created the European Monetary System with its own collective unit, the ECU. This measure made it possible to keep national courses within a single corridor in most cases. Crisis of the European Monetary System of 1992-1993. showed the ineffectiveness of collective pegging of rates, since it was no longer possible to keep more than ten different currencies at the same level. The European Community decided to abandon its own currencies, creating a single currency - the euro. Thus, the European version of interaction in the monetary sphere is to create a monetary union on the basis of an economic one with a single currency of European origin. In Latin America in the 60-80s, several international monetary organizations were created: the Central American Monetary Union, the Latin American Export Bank, and the Caribbean Stabilization Fund. The idea of ​​creating a common unit of account was not implemented and member states failed to unify national currency systems. The created joint currency - the Central American peso - was used only for mutual offset of claims. In the 90s, the process of dollarization intensified in Latin America, which was caused by a sharp deterioration in the economic situation of a number of countries in the Latin American region and the strengthening of the foreign policy influence of the United States. Thus, in 2000, Ecuador abandoned its national currency - the sucre, exchanging it for the US dollar, and the Central Bank of Argentina officially proposed creating a monetary union in Latin America, providing for the replacement of national currencies with the US dollar and the transfer of rights to regulate emission and budget policies to the United States. Thus, the Latin American way of integrating the monetary and financial sphere is based on an external currency, which is first used for external payments and then displaces national money from internal monetary circulation. In Africa, there are two monetary unions - the Central African Monetary Union and the West African Monetary Union, the unit of account of which is the African Community Franc - the CFA franc, which is pegged to the French franc. In recent years, the eight states of the Economic Community of West African States (ECOWAS) have been developing a program to introduce a collective currency, the Afro. The African version of the currency space is based on the linking of a unit of account to a foreign currency, which is used for external payments, but does not penetrate into internal ones. Thus, there are various options for monetary integration, namely: a monetary union based on an economic one with a single currency of European origin; the single currency area is based on an external currency, which is first used for external payments and then displaces national money from internal circulation; linking the unit of account to foreign currency, which is used for external payments, but does not penetrate into internal ones.

We can conclude that the fundamental institutions of international monetary law, which were the first to emerge at the multilateral level, are: a) the institution of convertibility of national currencies, maintaining exchange rates; b) the institution of maintaining balance of payments balance.

Within the framework of international monetary law, states, by virtue of international legal custom, have secured and expanded a number of sovereign rights. They have the right to the national currency and are free to independently determine the appearance, shape and name of the money - the national currency. For example, money can be paper and/or in the form of coins; they form cash. Cash is a historically transitory form of money; gradually it gives way non-cash(“invisible”) money. TO non-cash refers to money in bank accounts, which is recorded as entries in accounts and circulates by debiting from one account and crediting to another account.

Some countries allow, allow or have legally formalized the free circulation on their territory along with the national currency - or even instead of it - of a certain foreign currency (for example, the US dollar). Within the framework of integration associations, national currencies are replaced by a common currency. The general - collective - monetary unit is formed, as a rule, on the basis of a “basket” of national currencies.

Under bilateral international treaties, one state can print the national money of another state on the order of that other state. For example, in Russia paper money is printed and coins are minted for a number of CIS countries.

The main treaty norms, or principles, of international monetary law, established at the multilateral level, are that states have the obligation to: a) ensure the convertibility of their national currency; b) eliminate restrictions on international payments for current operations (Article VIII of the IMF Treaty). The convertibility of the national currency means that residents and non-residents can freely - without any restrictions - exchange the national currency for foreign currency and use foreign currency in transactions. Of course, there are permitted exceptions to these rules, primarily related to the state of the country's balance of payments.

Within the framework of certain exceptions, states can strictly fix the exchange rate of the national currency in relation to a foreign one, regulating it with direct restrictions and bans on the use of foreign currency, but this is precisely the practice that the entire IMF strategy is trying to eliminate.

Ideally, currency convertibility should be free, and exchange rate regulation should be achieved by flexible, mainly market, methods (including regulation of the money supply, foreign exchange reserves, etc.). From convertibility to current operations You can move on to convertibility in capital transactions - with direct and portfolio investments. However, the path to full convertibility depends on the balance of payments situation and the quality of the currencies.

It is customary to distinguish currencies: reversible(freely convertible - fully or partially); irreversible(closed, non-convertible). Reversible name the currencies of countries whose legislation does not contain restrictions for operations related to the exchange of national currency for any other currency. These currencies include: US dollar, euro, Canadian dollar, Japanese yen, etc.

Currency restrictions may concern not only issues of currency convertibility, but also individuals. For example, in some countries (including Russia) there are restrictions on foreign exchange transactions only between residents.

Here are some examples of the form in which restrictions on currency convertibility for current transactions may take place:

• a requirement for the importer, before concluding a contract, to deposit in the Central Bank or another bank (usually in national currency) part of the upcoming payment for an import transaction in order to obtain the necessary currency to pay for the import;
• direct distribution by the government or the Central Bank of foreign currency among importers in the form of individual or general quotas;
• the requirement to obtain prior permission from the Central Bank to make payments for imports or to open an import letter of credit;
• requirement of mandatory sale by the Central Bank of foreign currency received from exports;
• restrictions on the payment of travel allowances in foreign currency;
• restrictions on the transfer of salaries and dividends abroad;
• restrictions on interest payments on external debt, etc.

International monetary law, as we see, also actively influences the internal law of states, unifying and harmonizing it. International monetary law, in a sense, links national currency systems to ensure the balance of payments of the world's states and prevent international currency crises.

The practical absence of international legal norms regarding the foreign exchange reserves of states can be considered a gap in international monetary law. States independently determine the size and structure of foreign exchange reserves, the procedure and conditions for their use. Many parameters of the foreign exchange reserves of individual states have an extraterritorial effect, i.e. capable of influencing exchange rates, international trade and the international financial system as a whole.

Thus, in terms of the size of foreign exchange reserves, China, for example, is one of the first places in the world; a significant portion of these reserves are in US dollars. This fact places particular urgency on relations between China and the United States, as well as on the state of the entire international financial system. There are no legal (international legal norms) that would regulate this situation.

Attention should also be paid to the issue of balance of payments. On the one hand, maintaining, by international legal means, the balance of payments of states on a bilateral and multilateral basis is the subject of international monetary law. On the other hand, the phenomenon of the balance of payments coincides with the issues and problems of legal support for a wide range of international financial relations: payment and settlement, credit, debt, etc. In this understanding, international legal norms relating to the balance of payments appear as a complex institution that links all other MFP institutions.

The theory of the balance of payments has undergone a long and complex evolution. The first attempts to evaluate international economic transactions were made in Great Britain in the 14th century, when the outflow of gold from the country was recorded. The very concept of the balance of payments was first introduced into economic theory in 1767 by James Stewart. The first official publication of the balance of payments was made in the United States in 1923. Much work to standardize methods for compiling balances of payments was done by the League of Nations, which in 1924 gave the first publication of balances of payments for 13 countries for 1922. In 1927, recommendations were proposed by the League of Nations on international comparison of foreign economic indicators. The recommendations were based on samples of the US and UK balances of payments. In 1947, a scheme for compiling balances of payments was published as a UN document. Subsequently, this work was continued by the IMF.

It is very important that states maintain their balance of payments as uniformly as possible in order to ensure comparability of results. For these purposes, the IMF has developed special Guidelines for compiling the balance of payments in the form of recommendations. The IMF's Balance of Payments and International Investment Position Manual, 2008 edition (6th edition - BPM 6) is currently in force. IMF member states use it as the basis for maintaining their balance of payments (with some national accounting features).

It can be assumed that the requirements for the content and rules for maintaining balances of payments will be tightened and unified. Russia, after joining the IMF, regularly publishes its balance of payments. The balance of payments is maintained according to the double-entry principle, which means that each transaction is taken into account in the balance sheet twice: for example, the export of goods is accounted for as a decrease in commodity assets in exchange for the incurrence of buyer debt. The balance of payments is a statistical document - a set of foreign economic transactions that residents of a state carry out with non-residents in a certain year. Such transactions involve the transfer of ownership of goods and services from residents to non-residents and back, denominated in foreign currency. Thus, the balance of payments is actually the foreign exchange balance of the state, however, it should be understood that in the absence of a foreign trade monopoly, the balance of payments reflects the transactions of all participants in foreign economic relations.

In the Russian Federation, the compilation of the balance of payments is entrusted to the Central Bank of the Russian Federation (Bank of Russia), which publishes this document on its website, quarterly discloses information on the dynamics of the main indicators (aggregates) of the balance of payments and once a year, before May 15, presents the currency balance to the State Duma as part of the annual report position and balance of payments of the Russian Federation (Article 25 of the Federal Law of July 10, 2002 No. 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)”).

In national and international law related to currency relations, a set of rules is emerging that relate to various branches of law, but have common specifics. All of them regulate relations with currency. The currency of the Russian Federation includes banknotes in the form of banknotes of the Central Bank of the Russian Federation, which are in circulation as a legal means of cash payment in Russia. The legal regime of the currency of the Russian Federation is determined by Art. 75 Constitution of the Russian Federation, art. 140 Civil Code of the Russian Federation, art. 27-34 of the Law on the Central Bank of the Russian Federation, according to which the ruble is the only legal tender that must be accepted throughout Russia. Depending on the method of payment, the currency of the Russian Federation is divided into cash and non-cash (Article 861 of the Civil Code of the Russian Federation). Of fundamental importance in regulating settlements are the norms contained in Chapter. 45 and 46 of the Civil Code of the Russian Federation.

The term “currency” has two meanings: firstly, it is the monetary unit of the state, and secondly, it is the banknotes of foreign states, as well as credit and payment documents expressed in foreign monetary units and used in international payments (foreign currency).

When it comes to financial legal relations, the term “currency” is most often used in the second meaning. Any state regulates currency relations based on its economic objectives and political goals, which may change at each stage of development of society. Since the proclamation of its sovereignty, Russia has been characterized by a policy of liberalism, which is reflected in legislation. Taking into account the attribution of currency regulation to the exclusive competence of the Russian Federation (clause “g” of Article 71 of the Constitution of the Russian Federation), the system of currency legislation is constituted by the Constitution of the Russian Federation; international treaties of Russia: acts of currency legislation and other federal laws; subordinate regulatory legal acts of federal executive authorities, including acts of currency regulation authorities and currency control authorities.

Foreign exchange legal regulation is carried out at two levels: regulatory and individual.

Legal regulation consists of creating legal norms, the object of which is social relations related to currency.

Individual legal regulation is the application of legal norms to specific life circumstances, which entails the emergence, change and termination of specific currency legal relations.

The implementation of foreign exchange activities of the state requires legal regulation of relations arising in the process of its implementation, i.e. securing the rights, obligations, and responsibilities of subjects of currency relations. This is precisely the purpose and role of currency law.

Currency law is included in the system of financial law as a sub-branch. Currency law is a set of legal norms governing social relations, consolidating and regulating relations that arise in the process of organizing foreign economic activity of the state and business entities of various forms of ownership. Currency law establishes the structure of the foreign exchange market, the distribution of competence of its participants in this area and, based on the initial norms, regulates their legal relations.

In currency law, rules prevail that clearly define the procedure for carrying out certain actions, the specific rights and obligations of the persons performing them, and the rules on liability for non-fulfillment or improper fulfillment of legal obligations.

The possibility of choosing options for legal actions for participants in the relevant legal relations is reduced to a minimum. Dispositive legal norms are used here quite rarely.

Consequently, the subject of currency law is the relations arising in the sphere of implementation by the state or its authorized bodies of currency regulation on the territory of the Russian Federation in order to implement their tasks. Relations in the sphere of currency control are the activities of currency control authorities and their agents, which is recognized and guaranteed by the Constitution of the Russian Federation and is aimed primarily at protecting state interests. These relationships are very diverse in content, which is due to the multi-part nature of the foreign exchange market and its structure.

The subject of currency regulation in the Russian Federation is:

protection of the Russian currency;

ownership rights of subjects of foreign economic activity to currency values;

the procedure for regulating the domestic foreign exchange market of the Russian Federation;

legal regime of residents' accounts in foreign currency;

currency transactions carried out by residents in the Russian Federation;

legal regime of non-resident accounts in foreign currency and in the currency of the Russian Federation;

currency transactions carried out by non-residents in the Russian Federation;

functions and powers of currency regulation authorities.

By regulating these relations, the rules of currency law establish the rights and obligations of government bodies, currency control authorities, residents and non-residents. The emerging currency law reflects the new economic and political realities of our country.

It is in this way that in Art. 2 of the Law on Currency Regulation talks about the scope of this law and the nature of the relations regulated by the law. The main thing that this law is aimed at is the establishment of the legal foundations and principles of currency regulation and currency control. The second group of tasks is related to establishing the scope of rights and responsibilities of government bodies and those affected by them - residents and non-residents. Thirdly, the law defines the scope of regulation, which includes relations regarding the ownership, use and disposal of objects of currency regulation. Firstly, the type of currency regulation objects themselves is indicated. These include currency values ​​and Russian currency and domestic securities.

Foreign exchange regulation is aimed at streamlining relations between subjects of foreign exchange activities. Moreover, one side of such relations is always the subject endowed with power.

In certain situations, commercial banks are vested with the right to give instructions and carry out control actions. In this case, they have the status of authorized banks. This right is delegated by the state to authorized banks, just as many budgetary institutions are vested by the state with the authority to carry out a number of public functions.

Currency regulation is associated with a specific object, regarding which the corresponding legal relations are formed, changed and terminated. This object has a regime defined by law. First of all, this concerns currency, which refers to banknotes of our country or other states, provided that they are located on the territory of the country or with residents of the Russian Federation abroad. Russian banknotes are subject to the currency regulation regime only in a situation where they are held by non-residents or moved across the customs border. Thus, relations regarding the Russian monetary unit are regulated by the norms of currency law and the norms of another legal institution - the issue of money and monetary circulation.

The method of currency law is a set of legal norms governing the relations that form the subject of this sub-branch as a section of the financial law system. The main method of currency law is power-cost, it is imperative in nature and includes regulations, permissions, prohibitions, as well as guarantees and is due to the complex nature of the relations that constitute the subject of financial law.

Today, financial and legal regulation in general and currency regulation in particular are characterized by other methods: recommendations, approvals, etc. Currently, such methods are becoming more and more widely used.

Legal institutions within the framework of currency law include:

a set of legal norms regulating the role and place of the Central Bank of the Russian Federation as the basis of currency control;

a set of rules of law governing foreign exchange transactions between residents and non-residents;

a set of rules of law governing the rights, obligations and guarantees of residents and non-residents;

a set of legal norms governing liability for violation of currency legislation.

Currency law influences social relations with the help of such legal techniques (methods) as prescription, permission, prohibition, the combination of which determines the nature of legal regulation. The complex nature of the subject of currency law means that this is a secondary industry, which is formed and developed largely at the expense of other industries, borrowing from them individual norms and entire institutions.

Depending on the predominance of a particular legal technique in the system of legal methods of regulating social relations, two main methods of legal regulation are distinguished - imperative (authoritative) and dispositive.

Permission recognizing the equality of the parties lies at the basis of discretionary regulation. The dispositive method of regulation is inherent in the branches of private law: civil, family, etc.

O "1" named after a municipal entity, local government bodies can, through their actions, acquire and exercise property rights and obligations (Article 125 of the Civil Code of the Russian Federation).

Currency regulation and currency control in the Russian Federation are carried out in accordance with the principles:

The priority of economic measures in the implementation of state policy in the field of currency regulation. This principle means a rejection of the previously used permissive method of regulating foreign exchange transactions and a transition to the primary use of economic methods of regulation in relation to subjects of foreign exchange legal relations to stimulate or disincentivize them to carry out certain foreign exchange transactions. Mandatory reserves can be recognized as the main economic method enshrined in the Law on Currency Regulation.

At the same time, all measures enshrined in the Law on Currency Regulation continue to be administrative in nature.

Thus, unfortunately, this law does not consider the actions of the Bank of Russia in the foreign exchange market through foreign exchange interventions in accordance with Art. 41 of the Law on the Central Bank of the Russian Federation.

Elimination of unjustified interference by the state and its bodies in foreign exchange transactions of residents and non-residents. First of all, the content of the principle reflects constitutional guarantees for the free movement of financial resources and freedom of economic activity (Article 8 of the Constitution of the Russian Federation), ownership, use and disposal of property (Article 35 of the Constitution of the Russian Federation), the admissibility of restricting the rights and freedoms of man and citizen only by federal law and only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and

legitimate interests of other persons, ensuring the defense and security of the state (Article 55 of the Constitution of the Russian Federation).

The principle means the application of currency regulation (through currency restrictions) solely to achieve general (preamble of the Law on Currency Regulation) and special (Article 6 of the Law on Currency Regulation) goals.

For example, with regard to the special goals of regulating transactions between residents and non-residents (Article 6 of the Law on Currency Regulation), it is stated that the currency restrictions established to achieve them must be non-discriminatory in nature and are subject to cancellation by currency regulatory authorities as the circumstances that led to their establishment are eliminated .

A consequence of this principle is also the rejection of the model of general foreign exchange regulation, under which restrictions could be established by the competent authorities in relation to any foreign exchange transaction.

It is also implemented in the area of ​​currency control, although not always consistently. Thus, the Law on Currency Regulation strictly regulates the powers of currency control authorities and agents: an exhaustive list of documents is established that can be requested from subjects of currency transactions (Part 4 of Article 23) and for the provision of which must be allocated at least seven working days (p. . 3 part 1 art. 23).

Unfortunately, the Law on Currency Regulation did not establish the procedure and timing of inspections by currency control authorities and agents. The absence of these standards preserves the possibility of arbitrarily determining the parameters of the inspection being carried out. The only regulated type of such inspections at present are inspections of the Bank of Russia in relation to authorized banks (instructions of the Bank of Russia dated August 25, 2003 No. 105-I “On the procedure for conducting inspections of credit institutions (their branches) by authorized representatives of the Central Bank of the Russian Federation", dated December 1, 2003 No. 108-I “On the organization of inspection

tional activity of the Central Bank of the Russian Federation (Bank of Russia)"1.

In addition, if it is stipulated for currency control agents that they have the right to demand only those documents that are directly related to the currency transaction being conducted, then there is no such restriction in relation to currency control authorities. There is a more abstract rule about the ability to request and receive documents and information related to conducting currency transactions, opening and maintaining accounts.

The significance of the principle under consideration also lies in the need for strict compliance with the rights and interests of controlled entities when implementing currency control, eliminating or minimizing costs (time, labor, material) for controlled entities when implementing control measures.

Unity of the foreign and domestic monetary policy of the Russian Federation. This

means the need for consistent implementation of foreign and domestic monetary policy. It is obvious that setting and attempting to solve mutually contradictory tasks in the conduct of foreign and domestic policies is fraught with a sharp weakening of the stability of the national currency, destabilization of the domestic foreign exchange market and a decrease in the investment attractiveness of Russia for foreign investors.

From the principle of unity of the foreign and domestic foreign exchange policies of the Russian Federation, enshrined in the commented article, it follows that foreign exchange regulatory authorities are obliged to coordinate among themselves proposals for establishing requirements for the implementation of foreign exchange transactions. Such proposals should not be discriminatory in nature and can only be introduced in order to prevent a significant reduction in gold and foreign exchange reserves, sharp fluctuations in the Russian currency, as well as maintaining the stability of Russia’s balance of payments.

Unity of the system of currency regulation and currency control in the Russian Federation. This principle follows from the exclusive

the competence of the Russian Federation is the authority to implement currency regulation (clause “g” of Article 71 of the Constitution of the Russian Federation).

According to A.B. Emelin, the vesting of the Government of the Russian Federation and the Bank of Russia simultaneously with functions in the areas of currency regulation and currency control (Articles 5 and 22 of the Law on Currency Regulation) should not be considered as a manifestation of this principle, since their combination within one government body contradicts the fundamental principle of separation of powers and sharply reduces management efficiency.

5. Ensuring the state equal protection of the rights and economic interests of residents and non-residents when carrying out currency transactions. According to Part 12 of Art. 23 of the Law on Currency Regulation, currency control bodies and agents and their officials bear responsibility, provided for by the legislation of the Russian Federation, for their violation of the rights of residents and non-residents. Appeals against unlawful actions (inaction) of currency control authorities and agents are carried out in accordance with the generally established procedure.

All these principles, according to A.B. Emelin, set a high standard for the further development of currency legislation. At the same time, it is obvious that their significance for law enforcement practice was and remains minimal. In addition, the real significance of the established principles of existence and operation of institutions, the content of which is not clearly stated in the Law on Currency Regulation, seems highly controversial.

Currency relations are also regulated by the norms of constitutional, customs, civil, administrative, criminal and international (private and public) law.

The specificity of currency legislation is that the general legal categories of subjects are not entirely suitable for this issue.

millet Currency legislation uses categories of subjects not known to civil law in general, namely: residents and non-residents.

Residents:

a) individuals who are citizens of the Russian Federation, with the exception of citizens of the Russian Federation recognized as permanent residents of a foreign state in accordance with the legislation of that state;

b) foreign citizens and stateless persons permanently residing in the Russian Federation on the basis of a residence permit provided for by the legislation of the Russian Federation;

c) legal entities created in accordance with the legislation of the Russian Federation;

d) branches, representative offices and other divisions of residents specified in paragraphs located outside the territory of the Russian Federation. “c” clause 6, part 1, art. 1;

e) diplomatic missions, consular offices of the Russian Federation and other official missions of the Russian Federation located outside the territory of the Russian Federation, as well as permanent missions of the Russian Federation at interstate or intergovernmental organizations;

f) the Russian Federation, constituent entities of the Russian Federation, municipalities that act in relations regulated by the Law on Currency Regulation and other federal laws and other regulatory legal acts adopted in accordance with it.

Non-residents:

a) individuals who are not residents in accordance with paragraphs. “a” and “b” clause 6, part 1, art. 1;

b) legal entities created in accordance with the legislation of foreign states and located outside the territory of the Russian Federation;

c) organizations that are not legal entities, created in accordance with the legislation of foreign states and located outside the territory of the Russian Federation;

d) diplomatic missions, consular offices of foreign states accredited in the Russian Federation and permanent missions of these states to interstate or intergovernmental organizations;

e) interstate and intergovernmental organizations, their branches and permanent missions in the Russian Federation; f) branches, permanent missions and other separate or independent structural divisions of non-residents specified in paragraphs. “b” and “c” clause 7. part 1 art. 1.

The importance of distinguishing these categories of entities is that, depending on the type, the legal regime for their currency transactions is different.

The Law on Currency Regulation does not disclose the characteristics of residents and non-residents, so we will consider them in more detail. It is clear that, in relation to individuals, the criterion of citizenship has no meaning in determining their status as a resident or non-resident, but the law does not answer the question of what is considered the permanent place of residence of an individual.

According to paragraph 1 of Art. 20 of the Civil Code of the Russian Federation, the place of residence is recognized as the place where a citizen permanently or primarily resides. From this wording it is not clear when an individual is considered permanently residing in any MSTS. We need a completely clear and unambiguous criterion, which can only be found in tax legislation, and not in general civil legislation. In accordance with tax legislation, all tax payers, regardless of whether they are Russian citizens, foreign citizens or stateless persons, are divided into two categories: those who have permanent residence in the Russian Federation or those who do not. The first category includes those who live in the Russian Federation for a total of at least 183 days a year, even with interruptions in time. Such persons are residents within the framework of tax legislation. The second category includes those who live in Russia for less than 183 days a year, therefore, they have non-resident status.

Due to the fact that Russian legislation does not contain a complete and industry-wide concept of permanent residence, it is possible to apply the interpretation followed by the tax authorities of all states in accordance with the recommendations of the Organization for Economic Cooperation and Development. A person is presumed to be domiciled in a State if he has a permanent home in that State, has the closest personal and economic ties to that State, and habitually resides in that State. In the meantime, the interpretation of the concept of “permanent residence” is contained in interstate tax agreements concluded by Russia with other states. It would be advisable to include a clear criterion in the Law on Currency Regulation in order to avoid its ambiguous interpretation.

As for legal entities, the basis for classifying them into the categories of “residents” and “non-residents” is the criterion of “residence”, generally recognized in international private law. Residents of the Russian Federation are legal entities created in accordance with the legislation of the Russian Federation and located in the Russian Federation. In international private law, the location of a legal entity refers to the location of its management bodies. Thus, when determining the circle of resident individuals as subjects of currency relations, the citizenship criterion does not have any significance, but the criterion of permanent residence is taken into account. In relation to legal entities, when determining their status, the criterion of “settled residence” is used.

Having considered the specifics of the subjects of currency relations, we will consider the characteristics of their object. It is the object that determines the features of those relations between subjects that we call “currency”. In its most general form, the peculiarity is that their object is always currency values.

The Law on Currency Regulation provides a very narrow definition of currency values, while the Regulations on the procedure for the import into and export from the Russian Federation of foreign currency and securities in foreign currency by authorized banks (approved by order of the State Customs Committee of the Russian Federation dated May 19, 1993) were disclosed in detail its content. Analyzing these two documents, we can draw the following conclusion about the content of the object of currency relations - currency values. Currency values ​​include:

foreign currency, that is, banknotes in the form of banknotes, treasury notes, coins in circulation and being legal tender in the relevant foreign country, as well as banknotes withdrawn or withdrawn from circulation but subject to exchange; funds in accounts in foreign monetary units and international monetary or settlement units;

securities in foreign currency. These include three groups: payment documents (checks, promissory notes, drafts, letters of credit, credit card slips, payment orders, other orders for payment);

stock values ​​(shares, bonds, certificates of foreign exchange transactions: “futures” and “options”);

other debt obligations (certificates of deposit and savings, letters of guarantee, etc.);

precious metals - gold, silver, platinum and platinum group metals in any form and condition, with the exception of jewelry and other household products, as well as scrap;

natural precious stones - diamonds, rubies, emeralds, sapphires, alexandrites in raw and processed form, as well as pearls, with the exception of jewelry and other household products made from these stones and scrap of such products.

For example, the procedure for carrying out currency transactions with precious metals and stones is determined by the Government of the Russian Federation, within whose structure the Ministry of Finance is solely responsible for the circulation and use of these categories of currency assets in the territory of the Russian Federation and abroad. Legal regulation of the procedure for circulation and use of cash foreign currency and securities in foreign currency is within the competence of the Central Bank of the Russian Federation. This again reveals the specificity of legal regulation.

Import into the Russian Federation of foreign currency and foreign securities in documentary form is carried out by residents and non-residents without restrictions, subject to compliance with the requirements of customs legislation.

In general, the previous procedure for exporting cash foreign currency has been retained: free (up to $3,000) and declaration (from $3,000 to $10,000). In this case, it is not necessary to submit to the customs authority documents confirming the previous import, transfer, transfer or acquisition of currency (Part 3 of Article 15 of the Law on Currency Regulation). Amounts over $10,000 can be exported at a time only if they were previously imported, forwarded or transferred to the Russian Federation and subject to compliance with the requirements of customs legislation within the limits specified in the customs declaration or other document confirming their import, forwarding or transfer to the Russian Federation (Part 2 of Article 15 of the Law on Currency Regulation).

The procedure for transferring foreign currency abroad has been changed. After July 2006, residents received the right to transfer funds to their accounts (deposits) opened with foreign banks in the manner established by the Bank of Russia, which can only provide for the establishment of a requirement for a resident to reserve up to 100% of the transaction amount for a period of no more than 60 calendar days days before the day of the currency transaction (Part 4 of Article 12 of the Law on Currency Regulation). From the same time, funds in foreign accounts can be used by residents without restrictions, with the exception of currency transactions between residents (for legal entities) and currency transactions related to the transfer of property and the provision of services on the territory of the Russian Federation (for individuals) (Part 6 of Art. 12 of the Law on Currency Regulation).

As a result of studying the chapter, the student should:

know

• the concept of international monetary law;
• the role of international monetary law in modern conditions;
• subject and methods of international monetary law;
• status of subjects of international monetary law;
• sources of international monetary law;
• the relationship between international monetary law and the foreign exchange law of the Russian Federation;

be able to

• apply acts of international monetary law;
• determine social relations subject to regulation by international monetary law;
• determine the rights and obligations of subjects of international monetary law;
• apply sources of international monetary law;
• distinguish between the objects of legal regulation of international currency law and the currency law of the Russian Federation;

own

• consulting skills on the application of international monetary law;
• methods of analyzing acts of international monetary law;
• skills of legal examination of international law governing currency relations.

The concept of international monetary law and its role in modern conditions

In the context of the global financial crisis, the importance of international monetary law, which regulates international cooperation between states in the currency field and contains international legal principles and norms regulating the activities of states in coordinating their actions in the field of currency relations, is increasing.

Past and current crises have exacerbated the need for more effective legal regulation of the world economy and the international monetary and financial relations that serve it, both at the state and international levels, and have proven the need to strengthen multilateral mechanisms for such regulation. First of all, clear legal regulation of those currency relations and transactions that affect the interests of all or most countries is required.

International financial (monetary) law should play a positive role in the timely identification of impending crises, their prevention and overcoming possible negative consequences.

In the context of the integration of states into the world monetary system, the role of international monetary law is increasing, so it will increasingly be established at the regional and universal level, which is also due to the desire of many developing countries and countries with economies in transition to eliminate difficulties associated with their balance of payments, and solve problems of repayment of foreign loans.

To achieve this goal, it is necessary to effectively use all international legal means, methods and mechanisms of international legal regulation of cross-border movements of foreign currency.

In the works of scientists, various names of the branch regulating international monetary and financial relations were proposed: international monetary law, international financial law, international monetary and financial law, international financial and currency law, monetary and banking law, etc. But the term “international financial law” has been most often used recently, which, according to a number of authors, is more suitable for this industry than others, since the concept of “financial relations” is broader in content than the concept of “currency relations”. It should be noted that the content of currency law was and is perceived differently by the doctrine. The overall goal of the various concepts of international financial law is to establish a consistent approach to the regulation of diverse monetary and financial relations at both the international and domestic levels. Let's look at some of them.

A fairly large group of international lawyers adheres to the concept of attributing a set of currency rules to the system of international financial law, either highlighting within its framework the sub-branch “international currency law”, or considering the set of rules regulating currency legal relations as a special institution of international financial law (L. P Anufrieva, L. I. Volova, I. I. Lukashuk, E. A. Rovinsky, O. A. Safina, V. M. Shumilov).

E. A. Rovinsky back in the middle of the 20th century. raised the question of the advisability of recognizing international financial law as an independent branch and defined international financial relations as interstate relations, and recognized international monetary, credit and financial organizations in the field of international financial law as intermediaries in relations between states.

I. I. Lukashuk believes that precisely because of the predominance of currency relations in the system of financial legal relations, a number of authors call this sub-branch of international economic law international currency law.

G. M. Velyaminov adheres to the name “international monetary and financial law”, but also considers the regulation of international monetary, credit and payment relations between states in the system of international trade law. Further, he once again confirms that he includes international monetary relations in international trade law, and introduces international monetary law, along with other sets of rules, into the system of international financial law.

V. M. Shumilov, in earlier works, recognized international monetary law first as a branch, then as a sub-branch of international financial law, and later qualified it as an institution of international financial law. He noted that in relation to the international monetary system, it can be stated: a set of international legal norms is noticeable in it and is a priority. These rules constitute international monetary law as an institution of international financial law.

He especially noted the fact of mixing the branches of international financial and monetary law: “The movement of goods and services is accompanied by the transnational movement of monetary and financial flows, reflected in national balances of payments. The set of legal norms governing these relations forms international financial law (as a branch of international economic law), sometimes called international monetary law." At the same time, he believes that the name “international financial law” is more correct than the term “international monetary law” used in scientific and educational literature.

From the point of view of L.P. Anufrieva, “international financial law is one of the dynamically developing sub-sectors of modern international economic law.” It includes a set of rules governing currency relations in the system of international financial law.

At the same time, the author notes that “currency law” is highlighted in both domestic and foreign doctrine and therefore a correlation between “currency law” and “international financial law” should be drawn. In her opinion, it is necessary to take into account “key aspects of understanding the essence of the phenomenon called “international monetary law””.

O. A. Safina, based on an analysis of the features of international monetary law, comes to the conclusion that “it should be considered as an institution of international financial law.”

E. E. Ivanova includes international monetary relations in the types of international financial relations, but at the same time believes that “international financial law should not be identified with international monetary law.”

Some scientists (L. A. Lunts, A. B. Altshuler, V. I. Lisovsky) call the set of international legal principles and norms governing international monetary and financial relations international monetary law. They consider international monetary and settlement relations precisely as institutions of international monetary law.

Thanks to their efforts in the 70–80s. XX century The efforts of lawyers to develop the concept of international monetary law have intensified.

A. B. Altshuler dealt directly with the problems of international financial (monetary) law, who identified the concepts of “currency relations” and “financial relations” and made a valuable conclusion that international monetary law is a complex branch of law.

He drew attention to the specific nature of his subject, namely the regulation of legal relations with currency and currency values, and justified the need to combine the norms of international and national law into the branch of international currency law.

The relevance of the problem of improving the regulation of international monetary relations was noted by domestic scientists back in the 60–70s. XX century

V.I. Lisovsky believed that international financial relations are a type of international economic relations, but at the same time they have clearly defined characteristic features and can be called international monetary law.

The system of international financial law includes a set of rules regulating international monetary relations and the famous French lawyers D. Carro and P. Juillard. They indicate that “it is preferable to talk about the international monetary and financial systems, with the former more affecting interstate interests, the second – private interests.”

The famous German scientist V.F. Ebke determines the place of the norms of international monetary law in the system of international financial law, but, from his point of view, international financial law is a complex private-public legal branch and its basis is formed by international private monetary law as the law regulating private transactions, and international (public) monetary law as institutional law.

It is impossible to agree with this statement, since the author confuses two independent legal systems: public international law and private international law.

In fact, the subject of international monetary law consists of legal relations between public persons arising from their actions in the international monetary system, and legal relations between public persons relating to national and foreign currencies, primarily the determination of exchange rates and the conditions for the convertibility of national currencies.

Another foreign lawyer, R. S. Rendel, shares a similar position. He defines “international financial law as a set of private and public law rules governing relations regarding the international movement of capital, in which international monetary, financial and credit organizations and institutions play a significant role.” We cannot agree with such an assessment.

In our opinion, only public relations should be included in the sphere of international financial law, and private relations are included in the subject of regulation of private international law, in which, as is known, the institution of “legal regulation of international financial and settlement relations” is highlighted.

J. Norton also adheres to the point of view about the mixing of norms of a public nature and a private nature in regulating international financial (currency) relations. He notes, in addition, the close relationship between the norms of the complex soft law complex and binding international treaties and acts of national legislation. When regulating these relations, he especially emphasizes the complex nature of the rules of law, which is manifested in the fact that “the connections under study are regulated by branches belonging to different systems of law: international and national.”

The third group of scientists (Yu. M. Kolosov, E. S. Kuvshinov, M. V. Kuchin) is of the opinion that there is no need to separate two branches of law - international financial law and international monetary law - and therefore we should talk about a single monetary and financial right

Currently, some scientists express an opinion about the potential possibility of isolating legal norms governing currency relations into an independent branch of law.

For example, B. Yu. Dorofeev, N. N. Zemtsov, V. A. Pushin put forward the thesis about the formation of an independent branch of law - currency law, especially since in foreign science and practice such structures of law have long been distinguished. These scientists present currency law as a branch of Russian law and indicate that the currency legislation of the Russian Federation by 1999–2000. quite firmly isolated from other branches of legislation.

V.I. Davlieva also writes about the formation, but this time of international monetary law.

It should be noted that there are reasons in favor of such a position, namely: the peculiarity of currency relations, indicating their independent nature, as well as the fact that currency in most countries is a special and integral part of the economy, and the fact that currency relations have already become isolated from other types of relationships.

Indeed, currency legal relations have significant similarities with financial legal relations.

In the future, taking into account the pace of development of international legal currency documents, the specifics and enormous importance of relations regulated by international currency law, a situation with the separation of currency law as an independent branch is possible.

From our point of view, in the modern period, characterized by the monetary integration of states, there is a noticeable development of an important institution of international financial law - international monetary law, the evolution of which occurs under the influence of objective unifying processes at the global and regional levels, especially noticeable against the background of the fact that international financial law is a sub-branch of international economic law, however, unfortunately, today the content of the institution of international monetary law has not been fully defined.

Experts have formulated several definitions of international monetary law, which are general in nature and do not reflect all the characteristic features of this specific institution of international law. The most common definition is as follows: international monetary law is a branch of public international law, which is a set of existing and emerging international legal principles and norms governing relations between states and other subjects of international law in the field of international monetary relations.

In connection with the above discrepancies in the assessment, it is necessary to resolve the issue of the legal essence of international monetary law and give it an assessment, especially since the development of this institution of international financial law is very active, since the volume of movement of goods and services in world markets, accompanied by transnational promotion, is accelerating and increasing monetary and financial flows reflected in national balances of payments.

The purpose of international monetary law is also to eliminate obstacles to interstate currency transactions. In the structure of a currency legal relationship, the subject, object and content are distinguished as its elements.

• Cm.: Rovinsky E. A. International financial relations and their legal regulation // Sov. state and law. 1965. No. 2. P. 66.
• Cm.: Lukashuk I. I. International law. Special part / I. I. Lukashuk. M.: BEK, 1997. P. 199.

I MVP AS AN MFP INSTITUTE. MVP SUBINSTITUTES.

International monetary system – one of the subsystems of the international financial system.

International monetary law “serves” with its regulation !relations with the participation of subjects of international law - states and international (intergovernmental) organizations. ( Relations in the foreign exchange sector that develop at the private law level are regulated internal law of the respective states).

! International foreign exchange legal relations develop regarding status, currency exchange, rules for the functioning of foreign exchange markets. International legal norms that regulate these aspects form the institution international monetary law.

The fundamental sub-institutions of international monetary law, which were the first to emerge at the multilateral level, are : a) the institution of maintaining exchange rates; b) the institution of maintaining balance of payments. (Shumilov)

(Regulation: normative, principles, legal customs, non-legal forms.

(By virtue of international legal custom, states have secured and expanded a number of rights: they have the right to the national currency and are free to independently determine the appearance, shape and name of the money - the national currency.

The use of illegal norms is noticeable in the international monetary system, including soft law(Shumilov)).)

relations involving a wide range of participants, more about them later

and relations between the two states.

2. For example, under bilateral international treaties one state can, for example, print the national money of another state on the order of that other state. For example, in Russia paper money is printed and coins are minted for a number of CIS countries.

1. As for the main contractual norms of international monetary law established at the multilateral level, as Shumilov notes, they are that states are obligated to:

A) ensure the convertibility of its national currency;

b) eliminate restrictions on international payments for current operations (Article VIII of the Treaty about the IMF).

(Convertibility national currency means that residents and non-residents can freely - without any restrictions - exchange national currency for foreign currency and use foreign currency in transactions. Of course, there are permitted exceptions to these rules, primarily related to the state of the country’s balance of payments.)

ABOUT RESTRICTIONS: Within the framework of certain exceptions, states can strictly fix the exchange rate of the national currency in relation to foreign currency, regulate it with direct restrictions and prohibitions on the use of foreign currency, but this is precisely the practice that the entire IMF strategy is trying to eliminate.

It is customary to distinguish currencies: reversible ( freely convertible - in whole or in part); irreversible (closed, non-convertible). Reversible name the currencies of countries whose legislation does not contain restrictions for operations related to the exchange of national currency for any other currency. These currencies include: US dollar, euro, Canadian dollar, Japanese yen, etc. Non-convertible so far is the Chinese yuan.

Currency restrictions may concern not only issues of currency convertibility, but also individuals. For example, in some countries there are restrictions on foreign exchange transactions only for residents.

Here are some examples of the form in which restrictions on currency convertibility for current transactions may take place:

restrictions on the payment of travel allowances in foreign currency (limitation of payments for services);

restrictions on the transfer of salaries and dividends abroadetc..

II. I. IMF (continuing the subparagraph)

At all contractual basis for the IMF's activities (legal basis of activity – Agreement establishing the IMF, last amendments – 1997). play an important role in the issue under consideration. Thus, the main norms of currency regulation of the international balance of payments are rules on quotas and contributions to the IMF :

For each state a quota is established, which is expressed in special drawing rights.

At least once every 5 years - general review of quotas Board of Governors of the IMF or at the request of the state , if it considers it appropriate.

Any change to quotas requires majority of 85% of total votes .

The obligation of each state is established:

- cooperate with the IMF and other states and take legal action to ensure the stability of the exchange rate system and currency regimes

- avoid manipulation exchange rates to gain an unfair advantage in competition with other Member States.

- strive to promote stability

A significant number of provisions of the IMF Agreement are devoted to its depository activities .

Each state appoints its central bank as the depositary of all IMF holdings in its currency. The IMF may hold assets in depositories designated by the 5 largest quota member countries and other depositories chosen by the IMF.

III CURRENT PROBLEMS OF MVP

Space international monetary customs can be considered practicallack of international legal norms regarding foreign exchange reserves of states . States independently determine the size and structure of foreign exchange reserves, the procedure and conditions for their use. Many parameters of the foreign exchange reserves of individual states have extraterritorial effect, i.e. capable of influencing exchange rates, international trade and the international financial system as a whole.

Thus, in terms of the size of foreign exchange reserves, China, for example, is one of the first places in the world; a significant portion of these reserves are in US dollars. This fact imposes particular urgency on relations between China and the United States, as well as on the state of the entire international financial system. There are no legal (international legal norms) that would regulate this situation.

IV CONCLUSION

International monetary law actively influences the internal law of states, unifying and harmonizing it. International Monetary Law in a sense interfaces national currency systems to ensure the balance of payments of the world's states and prevent international currency crises.