Federal Service for Supervision in the Sphere of Consumer Rights Protection and Human Well-being Federal Budgetary Institution of Healthcare “Center for Hygiene and Epidemiology in the Republic of Tatarstan (Tatarstan). Concept, signs and types of financial services Providing

What is called financial services? What are they for? What are they? What are public financial services? Here is a short list of issues that will be covered in this article.

general information

Let's start by defining the term we're interested in. So, financial services are operations related to the corresponding assets, which are carried out in the interests of a third party. In this case, the frequency of their provision is of great importance. Financial assets mean debt obligations, securities, etc.

What could such an operation be like? For example, helping to pay off debt. In general, most of these activities are associated with debt obligations.

Financial services are very risky. But at the same time it promises significant profits.

What are they?

Financial services have a number of specific features:

1. Perceived as the activity of an individual or legal entity.
2. They do not have a material-material form of expression.
3. Despite their abstract form, they acquire concrete expression in the buying / selling process or established contractual relationship.
4. The positive effect is already evident during the provision of financial services.
5. The time of its provision and consumption, as a rule, coincide.

What fits this description? Trust management issuance of payment documents, cards, currency exchange activities, leasing, with their subsequent return, loans, guarantees, sureties, money transfers, insurance, pension savings, securities trading - and this is not a complete list.

Service portfolio

When a person hears the terms "portfolio" and "financial services", it is usually associated with securities. But it's not that simple. In this case, "portfolio" means a set of services that are provided to people as part of financial services. Depending on the direction, there are:

• Direct services. Their feature is the direct focus on meeting the specific needs of the client (insurance, commercial, investment, payment).
• Indirect (related) services of the first type. They do not provide for the client to receive additional income, but provide a more comfortable interaction. So, they mean issuing plastic cards, managing an account using a phone, and the like.
• Indirect (related) services of the second type. Their feature is to provide the client with additional income and / or reduce costs when working with p. 1. As an example, we can cite the capitalization of deposits, in which interest is added to the account, and money begins to accumulate on them.

Separation of services according to their level of complexity

In this case, they are divided into four types. Providing financial services, it should not be forgotten, is a rather expensive undertaking. Therefore, the division into types was carried out, allowing a more objective assessment of their strengths in terms of work and interaction with the client. That's what came out of it:

1. This includes aspects of activities that are focused on meeting the needs of a wide range of clients and at the same time do not require any professional knowledge or special skills. This includes opening accounts, transferring money, and exchanging currency.
2. The second level is aimed at people who have certain knowledge of working with banks and their products. Examples include e-commerce systems, trust management, securities trading, property management. In this case, in addition to knowledge, you also need to have special technical equipment such as computers and software.
3. In this case, financial services are a tool to meet the special needs of customers. The latter need to have a certain level of training in order to be able to use these services. An example is trading on funds and the formation of a portfolio of securities with a certain level of return and risk.
4. At the fourth level of complexity, the consumer of these services is a very limited number of clients. To be successful, they need knowledge of financial planning and risk assessment. Then you can get access to exchange trading or the ability to make money on currency quotes.

Financial intermediaries

As you can see, the services listed above require certain knowledge. And since most of the people who want to do this do not have them, they turn to specialists. The financial services market is now competitive. But at the same time, alas, there are quite a few scammers. Therefore, when choosing a partner for interaction, it is necessary to objectively assess the current state of affairs, familiarize yourself with the history of his activities, various aspects of his work, and only then make a choice.

What should be understood as a public financial service?

The general list is given earlier. What is the difference between what the government provides and what the private sector offers? Let's take an example.

We have a man. He is a scientist and inventor. For the opening he will receive a significant amount of money. But, alas, he does not have enough of them for a four-room apartment for his entire family. Private companies offer him a loan at twenty percent per annum. And the state is ready to provide preferential terms (after all, he is a scientist!). And he offers to pay only four percent per annum.

Of course, the choice will be made in favor of the second option. After all, what does a private organization offer? Financial services from it are expensive, but the state offers a sparing regime.

And it's all?

Of course not. Here, relatively, one can also enroll state-owned enterprises that carry out financial activities, there are also many other aspects of support. But at the same time, two main areas can be distinguished:

• preferential;
• on general terms.

Let's consider an example: there He operates on market conditions, competing with commercial structures. But if an order is received from government officials for preferential financing of certain groups of the population (the same scientists), then he will fulfill it. And he will act exclusively according to the orders. So, if a loan for housing is provided, then the scientist will receive a loan of four percent. But the financial protection service itself will cost him at the market price.

Conclusion

The financial services sector is an integral part of the modern economy. You can live without it, but it will be difficult. When examining a sector, one cannot fail to see that it is segmented. The division is carried out according to the types of financial assets.

Most often, intermediaries who operate in this market are divided as specializing in credit, foreign exchange or insurance activities. In this case, acceptability is important, that is, the degree to which the product or service corresponds to the client's financial condition. In this case, they are guided by his investment objectives, the level of risk tolerance, knowledge, needs and experience. Each service should be assessed for convenience, feasibility and transparency.

, insurance and leasing, brokerage companies and many other companies. Financial services is the largest industry in the world in terms of revenue, according to 2004 data, the market capitalization of this industry in the S&P 500 is 20%.

Banking services

As a rule, in all countries a number of financial services are regulated in a special way, the right of which belongs only to banks. These services include:

• attraction of funds to deposits;
• collection of cash, bills, payment and settlement documents
• purchase and sale of foreign currency in cash and non-cash forms;
• issuance of bank guarantees;

There are financial services that are provided not only by banks:

• lending (including home loans or mortgages);

There is also the concept of microfinance and microfinance services (microcredit, microinsurance, etc.). These services are provided in developing and underdeveloped countries to people who, due to their dire financial situation, cannot qualify for ordinary financial services.

Investment banking services

Insurance services

Other

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Excerpt from Financial Services

Everyone knew very well that the pretty countess's illness stemmed from the inconvenience of marrying two husbands at once, and that the treatment of the Italian consisted in removing this inconvenience; but in the presence of Anna Pavlovna, not only did no one dare to think about it, but as if no one knew it.
- On dit que la pauvre comtesse est tres mal. Le medecin dit que c "est l" angine pectorale. [They say the poor countess is very bad. The doctor said it was chest disease.]
- L "angine? Oh, c" est une maladie terrible! [Chest disease? Oh, this is a terrible disease!]
- On dit que les rivaux se sont reconcilies grace a l "angine ... [It is said that the rivals were reconciled due to this disease.]
The word angine was repeated with great pleasure.
- Le vieux comte est touchant a ce qu "on dit. Il a pleure comme un enfant quand le medecin lui a dit que le cas etait dangereux. [The old count is very touching, they say. He wept like a child when the doctor said that dangerous case.]
- Oh, ce serait une perte terrible. C "est une femme ravissante. [Oh, that would be a great loss. Such a lovely woman.]
“Vous parlez de la pauvre comtesse,” Anna Pavlovna said, coming up. - J "ai envoye savoir de ses nouvelles. On m" a dit qu "elle allait un peu mieux. Oh, sans doute, c" est la plus charmante femme du monde, "Anna Pavlovna said with a smile over her enthusiasm. - Nous appartenons a des camps differents, mais cela ne m "empeche pas de l" estimer, comme elle le merite. Elle est bien malheureuse, [You are talking about the poor countess ... I sent to inquire about her health. I was told that she was a little better. Oh, without a doubt, this is the prettiest woman in the world. We belong to different camps, but this does not prevent me from respecting her according to her merits. She's so unhappy.] Added Anna Pavlovna.
Believing that with these words Anna Pavlovna slightly lifted the veil of secrecy over the countess's illness, one careless young man allowed himself to express surprise that famous doctors were not called, but heals the countess a charlatan who can give dangerous remedies.
“Vos informations peuvent etre meilleures que les miennes,” Anna Pavlovna suddenly snapped at the inexperienced young man. - Mais je sais de bonne source que ce medecin est un homme tres savant et tres habile. C "est le medecin intime de la Reine d" Espagne. [Your news may be truer than mine ... but I know from good sources that this doctor is a very learned and skillful person. This is the health care provider of the Queen of Spain.] - And thus destroying the young man, Anna Pavlovna turned to Bilibin, who in another circle, picking up his skin and, apparently, about to dissolve it in order to say un mot, was talking about the Austrians.

FINANCIAL SERVICE FINANCIAL SERVICE - as defined by the Federal Law "On Protection of Competition in the Financial Services Market" dated June 23, 1999, "activities related to the attraction and use of funds from legal entities and individuals." For the purposes of the said Law, as F.w. deals with the implementation of banking operations and transactions, the provision of insurance services and services in the securities market, the conclusion of financial lease (leasing) contracts and contracts for the trust management of funds or securities, as well as other services of a financial nature.

A large legal dictionary. - M .: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukhareva. 2003 .

See what "FINANCIAL SERVICE" is in other dictionaries:

FINANCIAL SERVICE- activities related to the attraction and use of funds from legal entities and individuals: banking services, insurance services, services on the securities market, services under a lease agreement, as well as services provided by financial ... ... Legal encyclopedia

Financial service- 2) financial service banking service, insurance service, service on the securities market, service under a lease agreement, as well as a service provided by a financial organization and related to the attraction and (or) placement of funds from legal and ... ... Official terminology

financial service- as defined by the Federal Law On Protection of Competition in the Financial Services Market of June 23, 1999, activities related to the attraction and use of funds from legal entities and individuals. For the purposes of the said Law, as F.U. ... ... Big Law Dictionary

Financial service- Activities related to the attraction and use of funds from legal entities and individuals. As financial services are considered the implementation of banking operations and transactions, the provision of insurance services and services in the securities market ... ... Vocabulary: accounting, taxes, business law

FINANCIAL SERVICE- FINANCIAL SERVICE ... Legal encyclopedia

Financial Pyramide- (Financial Pyramid) A financial pyramid is a monetary structure that accumulates funds by constantly attracting new investors. Financial pyramid: a list of financial pyramids, combating financial pyramids, financial ... ... Investor encyclopedia

Forfaiting- - a financial service in which the seller sells the buyers' receivables in full and without a reservation about their liability in case of non-payment. Thus, when using forfeiting, the risk is assumed by a specialized ... ... Banking encyclopedia

- (English international factoring) a kind of factoring operation that provides financing for the supply of goods and services with a deferred payment in conditions when the seller and the buyer are residents of different states. ... ... Wikipedia

Invoice discounting- - financial service of banks, in which the seller is paid the amount owed by buyers. Unlike factoring, a discounting invoice is not a payment for each transaction, but a one-time payment of the entire debt balance minus a certain ... ... Banking encyclopedia

Factoring- - financial service of a specialized company or bank. In general, factoring is used as follows: a supplier sells a product to a buyer without requiring immediate payment for it. For the buyer of this product, the seller is paid by a specialized ... ... Banking encyclopedia

Books

• Legal category "financial service" in the legislation on the protection of competition, N. V. Bandurina. The definition of a financial service has been amended in the new law. The elements of financial services have been unified, i.e. every action that is part of the financial ...

Doctor of Law, Professor of the Department of Business Law of the State University - Higher School of Economics

Financial services, as a holistic phenomenon, have recently begun to be systematically studied by Russian jurisprudence. It is unlikely that I will be mistaken if I call the book and its doctoral dissertation the first systematic research in Russia devoted to these services. Despite the fact that certain types of financial services - banking, insurance services, services on the securities market, collective investment schemes, etc. - have been studied for a long time and very actively, the question of what is in common in the legal regulation of all financial services, regardless of their species, up to practically in domestic jurisprudence was not set and, accordingly, was not studied.

As always, at the beginning of systematic research, the question arises about the definition of concepts and, first of all, the key concept in this case - financial services. This work is devoted to this.

Two approaches to defining financial services.

proceeds from the fact that the concept of "financial services" and "investment services" are currently identical. Moreover, in her works this circumstance is considered as obvious and does not require any justification.

So in his doctoral dissertation he first defines investment: “ An investment is an act of alienation by the owner ... of funds ... for the purpose of subsequent receipt of income", And further the definition of financial services:" A financial service (or investment service) is a service provided by a professional participant in the financial services market ... on the basis of an agreement for the purpose of transferring funds alienated by the investor in favor of the recipient of investments».

Thus, in my opinion, the qualification of a service as a financial one essentially depends on the purpose for which the client of a financial institution (a professional participant in the relevant market) sends his money turnover. It is in connection with the presence of such a goal that a financial service is identical to an investment one.

Consistently applying this definition, it does not recognize as financial services transactions in a current bank account, transactions with bank cards, insurance services not related to the placement of funds by an insurance organization.

However, there is also a slightly different definition of financial services. Article 4 of the Federal Law -FZ “On Protection of Competition” gives the following definition: “ financial service - a banking service, an insurance service, a service on the securities market, a service under a lease agreement, as well as a service provided by a financial institution and related to the attraction and (or) placement of funds from legal entities and individuals».

Since all the services listed in this norm are related to the attraction and placement of other people's funds, then “ communication with the attraction and placement of funds from individuals and legal entities»Can be considered one of the qualifying features of these services for the purposes of this definition. Moreover, new types of such services are constantly appearing on the markets and therefore their list is not exhaustive.

The term “financial intermediation” will also be used here to briefly denote this activity of attracting and placing other people's funds.

The second qualifying feature of a financial service in the above definition can be considered the entity that provides it - a financial organization. The concept of "financial organization" is defined in the same Law and contains an exhaustive list of them.

Thus, the necessary and sufficient set of qualifying features of financial services in terms of the definition given in the Federal Law "On Protection of Competition" is formed by two features:

· These are services related to the attraction and placement of other people's funds;

· Provided by a financial organization, an exhaustive list of which is given in the Law.

Note that the Law does not say anything about the purpose for which funds are put into circulation, which are “attracted and placed” by a financial institution. The main feature of financial services here is the nature of the activity that the financial institution carries out - financial intermediation.

The concept of financial services is also defined in the so-called Agreement on about. Corfu, which is ratified and is part of Russian law. Appendix 6 to this Agreement contains a direct listing of services recognized as financial for the purposes of this Agreement. It is advisable to give this list for comparison:

A financial service means any service of a financial nature provided by a financial service provider of one of the Parties. Financial services include the following activities:

A. All insurance and insurance-related services

1. Direct insurance (including co-insurance)

ii) other types

2. Reinsurance and retrocession.

3. Insurance intermediation such as brokerage or agency operations.

4. Services ancillary to insurance such as consulting, actuarial, risk assessment, claims settlement services.

B. Banking and other financial services (excluding insurance)

1. Acceptance of deposits and other repayable funds from the population.

2. Lending of all types, including consumer loans, collateral loans, factoring and financing of commercial transactions.

3. Financial leasing.

4. All types of services for the transfer of payments and money, including the issuance of credit and debit cards, travelers checks and bank bills.

5. Warranties and Obligations.

6. Carrying out, at their own expense and at the expense of clients, on the currency exchange, on the over-the-counter securities market or otherwise, transactions with:

a) credit liabilities traded in the money market (including checks, bills of exchange, certificates of deposit, etc.),

c) derivative products, including, but not limited to, futures contracts and options,

d) instruments related to changes in foreign exchange rates and interest rates, including swaps and forward transactions,

e) transferable securities,

f) other negotiable documents and financial assets, including trading in gold and silver bullion.

7. Participation in the issue of all types of securities, including guaranteeing the placement of their issue on the market and their placement as an agent (public or private subscription) and the provision of services related to the issue of securities.

8. Operations in the money market.

9. Asset management operations such as direct and portfolio investments, all forms of joint investment project management, pension fund management, safe depository and trust services.

10. Services for making payments and clearing settlements for financial assets, including securities, derivatives and other negotiable documents.

11. Provision and transmission of financial data, processing of financial data and provision of related software by other financial service providers.

12. Advisory mediation and other ancillary financial services for all of the activities listed in paragraphs 1-11 above, including reference and analytical materials on loans, research and advice on investment and placement of securities, advice on acquisitions and corporate restructuring, and strategy.

In essence, this is all the same financial intermediation and some, as it is said here, "ancillary" services such as actuarial, consulting, etc.

It is clear that formally, due to the exhaustive nature of the list of services given in the Agreement and not exhaustive in the Law, the Agreement cannot cover all services that are recognized by the Law as financial. But the definition of the Law does not cover all the services listed in the Agreement.

Indeed, consider paragraphs A4 and B12 of the above list. It is debatable whether these services are covered by the definition of the Law if such services are provided by a financial institution. However, if such a service is provided by a non-financial organization, then these services are definitely not covered by the definition of the Law, since insurance actuaries and various kinds of consulting companies are not included in the list of financial organizations provided in the Law.

Thus, there are services that the Agreement recognizes as financial, but does not recognize the Law, and vice versa. That is, these two descriptions of financial services are at least not identical. However, in one thing they are very similar - both the definition of the Law and the list of the Agreement are based on the nature of the activity carried out by the person providing the service - financial intermediation and nothing is said about the purposes for which this intermediation is carried out.

On the question of the relationship between the definition of the Law and the list of the Agreement, only the following remains to be noted. Formally, many of the financial services under the Law are not fully included in the many financial services under the Agreement, although both of these sets have a very large part in common. However, if you read the list of the Agreement not formally, but take into account the content of the services provided in it, it is clear that the Agreement covers all services actually rendered in practice related to the attraction and placement of funds. This means that practically all actually provided financial services under the Law are covered by the Agreement, but there are more of them in the Agreement than in the Law.

Finally, the definition of financial services is also available in the General Agreement on Trade in Services (GATS), Marrakesh, April 15, 1994, to which Russia has not yet joined, but which, in a comparative legal perspective, is also advisable to take into account. In subparagraph "a" of clause 5 of the Appendix on Financial Services to the GATS it is said that for the purposes of this Appendix:

Financial services include all insurance and insurance-related services, as well as all banking and other financial services (other than insurance). Financial services include the following types of services:

Insurance and insurance-related services

i) Direct insurance (including co-insurance)

B) other than life insurance

ii) Reinsurance and retrocession;

iii) Insurance intermediation such as brokerage and agency;

iv) Ancillary insurance services such as advisory, actuarial, risk assessment and claims settlement services.

Banking and other financial services (excluding insurance)

v) Acceptance of deposits and other payable funds from the population;

vi) Disbursement of loans of all types, including consumer loans, secured loans, factoring and financing of commercial transactions;

vii) Financial leasing;

viii) All types of payment and money transfer services, including lending, payment and debit cards, travelers checks and bank bills;

ix) Warranties and obligations;

x) Trade at your own expense and at the expense of clients, on the currency exchange and outside the exchange, or otherwise:

A) money market instruments (including checks, bills of exchange, certificates of deposit);

B) foreign currency;

C) derivative products, including, but not limited to, futures and options;

D) instruments relating to exchange rates and interest rates, including such as swaps and forward transactions;

E) transferable securities;

F) other negotiable instruments and financial assets, including gold and silver bullion.

xi) Participation in issues of all types of securities, including guarantees and placement, as an agent (public or private), and the provision of services related to such issues;

xii) Brokerage operations in the money market;

xiii) Management of assets such as cash or securities, all types of collective investment management, pension fund management, custody, custody and trust services;

xiv) Payment and clearing services for financial assets, including securities, derivatives and other negotiable instruments;

xv) Provision and transmission of financial information and processing of financial data and related software by other financial service providers;

xvi) Advisory, intermediary and other financial support services for all activities listed in subparagraphs "v" - "xv", including reference and analysis materials on credit issues, research and advice on direct and portfolio investments, advice on acquisitions, reorganizations and corporate strategies.

We see that the list from the GATS in terms of the content of services is practically identical to the list of the Agreement on about. Corfu. The GATS list is only slightly more detailed.

Thus, there are two fundamentally different approaches to the definition of financial services. One approach understands by financial services a set of activities, which we designate as financial intermediation (attracting and placing other people's funds), and the second approach requires taking into account not only the nature of the activities of the persons providing these services, but also the investment purpose for which the recipient of these services is acting. Therefore, in the second approach, a number of types of financial intermediation are not recognized as financial services.

To select one of the considered approaches, let us turn to why the law and order, along with banking, insurance, securities market services, etc., also introduces the general concept of "financial services". Why does the legislator (and not only the Russian one) need this generalization? By answering this question, I think we can choose a definition that is appropriate to achieve this goal of the rule of law.

General properties of all types of activities to attract and place other people's funds (financial intermediation).

Financial intermediation and financial system.

Let's consider the essence of the activity of a financial intermediary - a financial organization. It either attracts other people's funds, promising the counterparty to return them after a certain time, or provides the counterparty with funds for a certain time under his promise to return them. At the same time, having received money from one participant in the turnover (A), the financial organization will place it with another participant (B) and, as a result, A and B are not connected in any way by private relations, are closely linked by interests. However, these interests are not generated by the relationship of specific persons A and B, since A and B may not even know about the existence of each other. In reality, we are not talking about the interests of specific A and B, but about the general interests of persons participating in the functioning of the financial system, that is, the interests in question are not private, but public in nature.

Thus, like any civil law relationship, financial intermediation generates the private interests of the parties to a transaction between a financial institution and its counterparty. However, in financial intermediation relations, in addition to the private interests of the participants in these relations, public interests play a huge role.

The presence of public interests in civil law relations is characteristic, of course, not only of financial intermediation. Suffice it to recall, for example, a construction contract, where the public requirements of numerous technical regulations largely determine the relationship for the execution of the contract. However, public interests in financial intermediation are specific. To clarify this specificity, a typical and relevant example can be cited.

Let's take a very schematic look at the nature of the current mortgage-backed securities crisis in the United States.

Since the beginning of the 30s of the XX century, the mortgage lending market has been actively functioning in the United States. However, if on the west coast of the United States there was an excess demand for mortgage loans, but a lack of savings, in other regions the funds attracted by banks in deposits significantly exceeded the demand for mortgage loans. Therefore, at the end of the 70s of the XX century, the securitization of claims for mortgage loans began to develop in the United States, that is, securities were issued secured by claims for mortgage loans (mortgage securities) and they were put into commercial circulation.

As a result, the main economic goal of creating a market for mortgage-backed securities was achieved - the redistribution of funds. However, securitization allowed banks to refinance mortgage loans - in fact, through mortgage securities one part of the population financed the purchase of real estate by another part of the population - and banks became less careful about checking the creditworthiness of mortgage borrowers. Requirements for borrowers have been significantly reduced.

Ultimately, many mortgage loans were unpaid, and the sale of mortgaged real estate was difficult due to the lack of effective demand. The claims made to banks for mortgage-backed securities significantly exceeded the banks' ability to satisfy them - a crisis broke out, which began to spread to other sectors of the financial markets. The state was forced to help the financial system cope with it.

These commissions were called “hidden” because they were accordingly included in the text of the loan agreement. For an ordinary person reading the agreement that the bank offered him to sign, the presence of these commissions is not always obvious. And sometimes these payments were included not in the text of the agreement, but in the annex to it, which the borrower received after signing the loan agreement.

All this led to the fact that many loans were not returned, but those who nevertheless repaid loans compensated the bank for its losses at the expense of "hidden fees". As a result, the situation turned out to be essentially similar to the mortgage crisis - the solvent part of the population financed the purchases of its insolvent part. This caused a protest, complaints rained down, and in 2005 the Federal Antimonopoly Service was the first of all state bodies to draw attention to these "hidden commissions" when banks issue consumer loans to the population, and in 2006, Rospotrebnadzor joined the fight against this phenomenon, though , without much success.

Already in mid-2005, the Federal Antimonopoly Service and the Central Bank issued joint recommendations on standards for disclosing information by banks in consumer lending, and in mid-2007 a corresponding clarification appeared to the document defining the formation of reserves by banks and during 2006 and 2007 by the state the authorities managed to force banks to fully disclose the amounts that the borrower must pay on the loan.

Similar "hidden" conditions are also practiced in insurance contracts. One of the insurance companies has included a clause in its Motor Vehicle Insurance Rules stating that in case of an accident that occurred through the fault of the policyholder himself, the insurance indemnity is not paid to him. Insurance rules are a multi-page document written in professional language. In order to understand it well, you need at least the skill of reading such texts. An ordinary person is unlikely to pay attention to all the subtleties the first time. Moreover, the price of insurance under these Rules for this company was approximately the same as in other companies that insure vehicles without such a reservation.

Rosstrakhnadzor, responding to complaints from policyholders, joined in the fight against similar conditions of insurance contracts, but so far unsuccessfully. The same Federal Antimonopoly Service succeeded better.

It would seem that in this case, the terms of a loan agreement or insurance agreement are a private matter of its parties. A person taking a loan or concluding an insurance contract must carefully read its terms, analyze them and decide whether to sign such a contract or not.

However, in this case, this thesis is incorrect. Modern life is dynamic. A person needs a loan or insurance now and does not have time to delve into the complex terms of the contract. Engaging a competent lawyer specializing in the relevant field to analyze the contract will lead to the fact that the loan will cost a fairly round amount. A detailed study of complex contracts for the provision of such specialized services, which include financial intermediation, is ineffective for the average person.

Thus, between the parties to the contract for the provision of financial intermediation services at the stage of concluding the contract arises information imbalance: the client of a financial institution, for quite objective reasons, does not understand the content of the service provided very well. All modern legal systems recognize that an organization is not entitled to take advantage of this imbalance and its client can count on protection from the rule of law.

The English authors, in the preface to their textbook of contract law, expressed this idea as follows: "The functions of the English judge are not to seek and find any elements of a mental nature, but to ensure, as far as practical experience allows, that the reasonable expectations of decent people are justified." ... I believe that this can be attributed not only to the English judges.

When concluding an agreement between a financial institution and its client, another imbalance also arises.

Financial organizations operate in such an area of ​​turnover that is highly susceptible to various risks, and they are obliged to ensure their financial stability in these conditions. Therefore, most of these organizations develop standard schemes for working with clients and conclude standard contracts with clients with standard conditions.

In some cases, the conclusion of standardized contracts is directly provided for by law. For example, in Art. Articles 940, 943 of the Civil Code of the Russian Federation expressly provide for the right of insurers to use standard forms of contracts and standard insurance rules. The agreement, which the shareholder of a unit investment fund concludes when purchasing a share, is an accession agreement, and this is an imperative requirement of the law (clause 1 of article 11 of the Federal Law -FZ "On Investment Funds"). The rules of non-state pension funds are also standard and can be used only after appropriate registration (clause 1 of article 9 of the Federal Law -FZ "On non-state pension funds").

In other cases, there are no such statutory requirements, but the contracts are nevertheless standardized. For example, with regard to the terms of agreements concluded by banks, the legislation is silent, but everyone who has ever applied to a bank knows that for all types of operations banks have standard forms and terms of agreements and force them to make any changes to these forms practically impossible. The same can be said for financial brokers, dealers, registrars, etc.

However, standardized contracts, like any other legal instrument, have their downside. When drafting these contracts, companies often include terms that a reasonable customer would not agree to if they could participate in negotiating the terms of the contract. Moreover, the texts of standardized contracts, as a rule, are quite voluminous and written in a specialized language, and the conditions in question are included in them so that they are not striking.

Such terms of contracts with standardized terms are well known to all legal orders. They are called differently: “unfair (unfair) conditions”, “unexpected reservations”, “invisible reservations”. In the above example from banking practice, they are called "hidden fees".

Thus, when concluding an agreement between a financial organization and its client, in addition to the information imbalance, there is one more disproportion, which we will call contractual... The client of a financial institution practically cannot influence the content of the contract - he can only agree with its content or disagree.

At the stage of execution of the contract for the provision of financial intermediation services, this contractual imbalance also manifests itself when a client of a financial institution makes a demand for payment of money.

A financial institution always places its money and the money of its clients in profitable financial instruments. Since we are talking about rather large amounts, the income from their placement is quite large, including in percentage terms.

For example, according to the Central Bank of the Russian Federation, the return on equity of Russian banks in 2006 averaged 26.3%. According to the Federal Insurance Supervision Service, more than 100 insurance companies had a return on investment in 2005 ranging from 12% to 40% per annum, and 10 insurance companies had a return of more than 40% per annum.

Responsibility for failure to fulfill the monetary obligation provided for in Article 395 of the Civil Code of the Russian Federation consists in paying interest at the refinancing rate.

Accordingly, when a monetary claim is presented to a financial institution, the question arises about the ratio of the consequences of non-fulfillment of this requirement and the income that will be received as a result of its non-fulfillment. Of course, part two of clause 2 of article 15 of the Civil Code of the Russian Federation provides for a means of combating such reasoning, allowing the creditor to recover lost profits in his favor in the amount of income received as a result of the debtor's failure to fulfill his obligation. However, this tool is only theoretical.

First of all, it should be noted the difficulties of recovering lost profits with the existing approach to its recovery. I investigated these difficulties in great detail. In addition, it is extremely difficult to prove that it was the money not paid on time that brought just such an income - for this you need to have special knowledge about how a financial institution works, where and under what conditions it places money. Her client, of course, does not possess such knowledge.

With all this, it should be borne in mind that the specifics of financial intermediation determines the complexity of the requirements and the actual costs of the client for litigation, including the services of a representative in such disputes, as a rule, are much higher than the courts collect within the so-called “reasonable limits”.

The disproportions that exist at the stage of concluding a contract are thus also manifested at the stage of contract execution.

So, the financial organization and its client, both at the conclusion of the contract and during its execution, being legally completely equal, are in fact in an unequal position.

When concluding an agreement, a financial institution can impose on the client conditions, the meaning of which he does not fully understand, and in a dispute over the execution of the agreement, the financial institution will almost always win, since it has the skill both in such disputes and in obtaining investment income. And her client will be the loser, because even having won the case, he will spend a lot of effort and money on the dispute, and as a result, the interest received not only does not compensate him for all his costs, but inflation will “eat up” them to a large extent.

According to the accepted terminology, the presence of these imbalances is indicated by calling the client of the financial institution the “weak side” of the contract.

With such disproportions, civil law is encountered quite often and not only in relations with financial intermediation. To one degree or another, they exist in almost any relationship between an entrepreneur and a consumer. However, in relations on financial intermediation, disparities are a consequence not only of the different status of their participants, but also due to the very content of these relations.

As already shown, all financial institutions operate with risks. But there are quite a few financial organizations, both because of the specifics of the services provided, and because of the stringent requirements. For example, in 2007 there were only 962 banks in Russia, 869 insurance companies, 1114 mutual investment funds, and only 6 joint-stock investment funds. Banks, insurance companies, and funds have tens of millions of clients. Therefore, each actively working financial organization has a lot of clients, and if an individual contract is concluded with each client, relations with each of them will generate individual risks for the financial organization and it will become completely impossible to manage these risks.

Only the typification of forms and the standardization of the terms of contracts allow typing and standardizing risks and working with them. Therefore, the use of standard forms of contracts and standard conditions for financial organizations is only partly a manifestation of their subjective will - there is a completely objective need for such a way of working, arising from the content of their activities, and practically they have no alternative to this.

Similarly, in the execution of the contract, the behavior of a financial organization is largely determined by the nature of its activities - the accumulation and investment of financial resources.

Thus, the disparities that are often present in various types of relationships involving entrepreneurs are much more pronounced for financial intermediation. In addition, such imbalances usually arise between entrepreneurs and consumers, but in the field of financial intermediation they are present both in purely entrepreneurial relations and in relations between non-profit financial organizations (consumer credit cooperative, non-state pension fund) and their clients. Such a pronounced disparity is due to objective reasons - the nature of the services provided and the need for a financial institution to ensure its financial stability.

At first glance, the protection afforded by the rule of law to equalize the disparities discussed is the protection of private interests. After all, the interests of individuals are protected. However, it is not. The Constitutional Court, recognizing as unconstitutional the norm that allowed banks to unilaterally change the interest rate on deposits, pointed out “... banking activities and really guarantee, in accordance with Articles 19 and 34 of the Constitution of the Russian Federation, the observance of the principle of equality in the implementation of entrepreneurial and other economic activities not prohibited by law ”.

Thus, the provision of protection in the cases under consideration is a constitutional obligation of the state, aimed at protecting the constitutional principle of equality, that is, public interests.

The European Court of Human Rights adheres to a completely similar position. In the well-known case of Thlimmenos v. Greece, this court indicated that equal treatment of persons in different situations by the law and order is discrimination.

That is, in this case, it is clear that the public interest generated by relations in the financial markets is closely intertwined with private interests and it is difficult to separate them.

These two examples, of course, do not exhaust those public interests that arise during financial intermediation and are protected by law and order. The most obvious of these public interests not considered here are those related to the protection of competition.

I limited myself here to the two types of public interests described above, since they are determined by the content of these services and make it possible to formulate the main features of financial intermediation that are common to all services of this type:

Financial organizations, providing services to their clients (attracting and placing their funds), simultaneously ensure the functioning of the financial system of the state, as well as the international financial system and therefore their ability to fulfill their obligations to customers (solvency and financial stability), their vulnerability to potential the crisis is not a private affair of either themselves or their clients;

· When attracting and placing funds, financial institutions face both the risk that they will not be returned the placed funds, and with the risk that they will not be able to return the attracted funds. They are required to professionally study these risks, assess them and manage them, that is, from financial institutions, in addition to financial solvency, professional preparedness is also required;

· There is an information imbalance in the contractual relationship between a financial institution and its client. The specific nature of financial intermediation requires special knowledge to understand the content of the services provided, which the client of a financial institution, as a rule, does not possess;

· In addition to information imbalance, there is also a contractual disproportion in the contractual relationship between a financial institution and its client. The client of a financial institution not only understands the content of the service provided worse, but to a lesser extent can influence the procedure for agreeing the terms of the contract and its execution.

These features characterize two types of relationships that financial institutions enter into:

· Public relations associated with the need to comply with financial and other public (professional) requirements. These relations are governed by special public law norms;

· Contractual relationship with the client, in which information and contractual disparities are manifested.

As we have seen, the interests associated with these two types of relationships are intertwined and it is not always possible to clearly distinguish between them.

Financial services concept.

Let's return to the choice of one of the approaches to the definition of financial services. We have shown that all types of financial intermediation services (activities to attract and place other people's funds) have important common properties:

· In the public law sphere, the provision of these services forms the country's financial system;

· In the private law sphere, there are serious disparities between financial intermediaries and their clients, due to the very content of the services provided.

These properties depend only on the nature of the activities of financial institutions - financial intermediation - and have nothing to do with the intended purpose of the funds with which these organizations operate.

We have also shown that public interests are associated with these common properties of all types of financial intermediation, which require protection from the rule of law. Accordingly, the rule of law creates mechanisms for such protection. The Federal Law "On Protection of Competition" mainly implements mechanisms to protect against imbalances, but the means of this law, which complicate economic concentration, also prevent the concentration of risks and thereby increase the stability of the financial system (financial stability). In the Agreement on about. Corfu, in the GATS, their parties mainly implement mechanisms for the development and protection of their financial systems, by promoting their companies to the financial markets of other countries and admitting foreigners to their markets, but with some restrictions on their activities.

In other words, the concept of "financial services" appears in the legislation whenever and wherever it becomes necessary to regulate financial intermediation - raising and placing funds - regardless of the purpose for which this money is put into circulation.

Therefore, in order to create mechanisms for the legal protection of those interests mentioned above, it makes sense to introduce a general concept covering any activity of financial intermediaries, regardless of the intended purpose of the money they deal with.

The concept of financial services proposed is too narrow for this. The main goals and characteristics of the mechanisms of legal protection of the considered public interests do not depend on whether the money is in bank deposits or in current accounts or transferred to the insurer under an insurance contract. On the one hand, all this money is in circulation and is, so to speak, the “blood” of the financial system. On the other hand, clients of financial institutions need protection from attempts by these institutions to exploit their natural advantages in the market.

Prepared with the support of the Scientific Fund of the State University - Higher School of Economics Grant No., as well as with informational support Plus ".

Semilyutina financial services market (formation of a legal model) - M., Walters Kluver, 2005, 336 p.

Semilyutin of the legal model of the Russian financial services market: diss. ... doct. jurid. Sciences 12.00.03 - M., 2005.

Semilyutin of the legal model of the Russian financial services market: abstract of dissertation. ... doct. jurid. Sciences 12.00.03 - M., 2005 p. 14. To save space, I have reduced the text a little, but its meaning is completely preserved.

Ibid, p. 15. This text is also slightly abbreviated, but with full meaning

SZ RF 2006, No. 31 (1 h.), Article 3434

Agreement on partnership and cooperation, establishing a partnership between the Russian Federation, on the one hand, and the European communities and their member states, on the other hand // SZ 1998, No. 16, article 1802

This agreement is published in English in International Investment Instruments: A Compendium. Volume I.- New York and Geneva: United Nations, 1996. P. It has not been officially translated into Russian and has not been published, but an unofficial translation is available in the information base “International Legal Acts” of the ATP “Consultant Plus”.

Baer Hans Peter Securitization of assets: securitization of financial assets - an innovative technique for financing banks /; lane with it. [,]. - M .: Walters Kluver, 2006, p. 391.

Ibid. p. 401-407

In Russia, the issue of such securities is currently regulated by the Federal Law -FZ "On Mortgage Securities". A description of the functioning of the main subject of the market for these securities - the mortgage agent - can be found in A. Gafarov's article Legal risks of a mortgage agent // Economy and Law, 2005, No. 7.8.

Got it out // Vedomosti, 29.12.2007, no.

The history of development and the nature of this crisis are succinctly, but very accurately described on the Internet portal BBC NEWS // Electronic resource http: // news. bbc. co. uk / 1 / hi / business / 7096845.stm and http: // news. bbc. co. uk / 2 / hi / business / 7073131.stm.

On the impact of the mortgage-backed securities crisis on other financial markets, see, for example, on the website of the International Monetary Fund article Dodd Randall Subprime Tentacles of a Crisis // Electronic resource http: // www. imf. org / external / pubs / ft / fandd / 2007/12 / dodd. htm.

For those interested in economics, a detailed analysis of this crisis is available in the October 2007 Global Financial Stability Report of the International Monetary Fund. Financial Market Turbulence. Causes, Consequences and Policies. Oct. 2007 - IMF Washington DC, 2007, p. p.2-39.

American aid in 800 dollars // Vedomosti, 20.01.2008, No. 9 (2031).

Erpyleva banking law: genesis, nature, basic concepts and institutions // M., Delo, 2004, p. 185.

A fairly complete listing of such commissions can be found in the article by S. Gorelik. Banks continue to deceive Russians // *****, 2005, №24. Electronic resource http: // www. ***** / articles / 2005/01/24 / 399766.shtml

Some information about the share of hidden fees in the profits of banks is given by the information portal ***** // Electronic resource http: //*****/news/newsline/18.04.2007/81505

Access to hidden commissions will be closed // Finance, 2005, №3

See Resolution 9 of the Arbitration Court of Appeal dated 01.01.2001 No. 09AP-11031/2007-AK, Resolution 9 of the Arbitration Court of Appeal dated 01.01.01 No. 09AP-14121/2007-AK

Joint letter from 01.01.2001 FAS RF No. IA / 7235 Central Bank of the Russian Federation No. 77-T // Bulletin of the Bank of Russia, 2005, No. 28.

Letter of the Central Bank of the Russian Federation of 01.01.2001 No. 78-T // Bulletin of the Bank of Russia, 2007, No. 34.

See Resolution of the FAS MO dated 01.01.2001 No.KA-A40 / 5013-07, Definition of the Supreme Arbitration Court of the Russian Federation / 07.

The information portal "Insurance Today" has outlined this story in sufficient detail // Electronic resource http: // www. ***** / news / 10272 /.

Cheshire H. Fifoot D. The Law of Contract / 11th Furmston - 1986, p.28f

SZ 2001, No. 49, article 4562

SZ 1998, No. 19, article 2071

Report on the Development of the Banking Sector and Banking Supervision in 2006 - M., Central Bank of the Russian Federation, 2007, p. 26 // Electronic resource http: // www. ***** / publ / root_get_blob. asp? doc_id = 7297.

Federal Service for Insurance Supervision. Report on the results of 2005 - 9 months of 2006 // Electronic resource http: // ***** / www / site. nsf / web / doc_.html, p. 35

At the time of writing this work is 10.25% per annum.

Egorov benefit: problems of theory and contradictions of practice // In the book. Losses and the practice of their compensation: Collection of articles / Otv. ed. - M., Statute, 2006, p. p.68-137

See about this Rozhkova reimbursement of expenses for the services of representatives and other legal losses // In the book. Losses and the practice of their compensation: Collection of articles / Otv. ed. - M., Statute, 2006, p. 566.

In the English-language literature, a similar, but somewhat more accurate, as I see it, term is used. They say that the parties to such an agreement unequalbargainingpower- unequal contractual power.

Resolution of the Constitutional Court of the Russian Federation of 01.01.2001 No. 4-P // Bulletin of the Constitutional Court of the Russian Federation, 1999, No. 3

De Precedents of the European Court of Human Rights. Guidelines for Judicial Practice Relating to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Judicial practice from 1960 to 2002: Translation from French // St. Petersburg, Jurid. Center Press, 2004, p. 748

This can be seen, if only from the amount of attention paid to the liquidity crisis of the US banking system by international organizations involved in the study and improvement of financial systems. The website of the International Monetary Fund (http: // www. Imf. Org) contains a lot of materials on the impact of the financial crisis in the United States on international financial stability, similarly to the website of the Bank for International Settlements (http: // www. Bis . org) on ​​the Monetary & financial stability tab (http: // www. bis. org / stability. htm).

Of course, the public interest in protecting competition is much broader. But here we are talking about the two general properties of financial services.