According to 115-FZ, transactions in the amount of at least 600 thousand rubles and transactions that have signs of an unusual transaction are subject to control. Violation of the provisions of the Federal Law may lead to the blocking of client accounts and the revocation of a license from a financial institution.
The main goal of the Federal Law (FZ) N 115-FZ of August 7, 2001 "On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism" is to protect the rights of citizens and the state.
This Federal Law governs the relationship individuals and companies that are subjects of the law, with government agencies that control money transactions, in order to prevent the inclusion of funds in illegal circulation.
Table 1. Subjects of 115-FZ
| Category | Subjects |
| Individuals | Russian citizens. |
| Foreign citizens. | |
| Stateless persons. | |
| Organizations and individual entrepreneurs | Credit organizations. |
| Market Participants valuable papers. | |
| Insurance companies. | |
| Federal Postal Service. | |
| Pawnshops and companies involved in the purchase of precious metals, precious stones and products from them. | |
| Organizers of lotteries, sweepstakes, etc. | |
| Management companies of investment, non-state pension, mutual funds. | |
| Engaged in real estate transactions. | |
| consumer cooperatives. | |
| microfinance organizations. | |
| Telecom operators, etc. | |
| foreign structures. |
Actions aimed at implementing the provisions of the law include mandatory and internal controls, as well as a ban on reporting on measures taken to comply with it. The exception is information about the state of the account, its blocking, or in carrying out transactions, as well as the need to provide documents.
Transactions in rubles and foreign currency that meet certain criteria. They are divided into transactions subject to mandatory control, and transactions that have signs of an unusual transaction.
Table 2. Operations subject to mandatory control
| Sum | The essence of the operation |
| ≥600 thousand rubles | Operations with cash. |
| Withdrawal or crediting to the account of legal entities. persons of cash, if this is not in accordance with the nature of his business. | |
| Buying or selling physical face of cash. | |
| Purchase or sale of physical face securities for cash. | |
| Physical cashing out in the face of a bearer check received from a non-resident. | |
| Exchange of banknotes of one denomination for another. | |
| The introduction of physical person in the authorized capital of the company cash. | |
| Receipt or transfer of funds to a person registered in the territory of a state that does not adhere to the FATF recommendations, or having an account with a credit institution located in this territory. | |
| Operations on accounts and deposits. | |
| Deals with movable property(precious metals, jewelry, insurance payments, leasing, etc.). | |
| Deliveries under the defense order. | |
| ≥ 3 million rubles | Real estate transactions. |
| ≥ 100 thousand rubles | Receipt non-profit organization funds and property from foreign countries and organizations or transfers to them. |
| ≥ 10 million rubles | Operations of organizations of strategic importance to the defense industry. |
| Regardless of the amount | One of the participants in the transaction is a person suspected of participating in extremist activities. |
Note. Full list signs of an unusual transaction is contained in the Appendix to the Regulation of the Bank of Russia No.375-P dated March 2, 2012 The most common of them: confusing or unusual nature of the transaction, which does not have an obvious economic sense, and inconsistency of the transaction with the goals of the company. If the transaction falls under one of the items on the list, the client is obliged to provide the bank with documents confirming the purity of the transaction.
Financial institutions are required to identify the person contacting them using certain criteria.
Table 3. Identification criteria
Identification information must be updated at least once a year, and if there is any doubt about its relevance and truth, within seven working days.
Non-state pension funds must update information about the insured at least once every three years, but if there are suspicions that the information is unreliable, they must double-check it within seven working days.
It is the responsibility of organizations that carry out transactions with funds to record and provide the authorized body within three days with the following information on transactions subject to mandatory control:
In addition, financial institutions are required to provide information at the request of the authorized body in the manner prescribed by the Central Bank of the Russian Federation.
Financial organizations also owe other property of clients included in the list of extremists and terrorists. The blocking must take place immediately, but no later than one working day from the moment the changes are made to the list of extremists. Checking the presence of its customers in it should be carried out at least once every three months.
The legal file containing the documents necessary for identification is subject to storage for five years from the date of termination of the relationship with the client.
If there are suspicions that the client's activities may be illegal, or he contacts with persons or organizations related to such activities, the credit institution has the right:
Banks are prohibited from opening accounts without the personal presence of the client or his legal representative, as well as without providing them with the information necessary for identification. This restriction does not apply in cases where the client or his representative has already been identified before.
It is also prohibited to open accounts in cases where there is a suspicion that this account can be used by the client in money laundering operations.
Rosfinmonitoring may decide to freeze all accounts of an individual or legal entity if there are reasonable suspicions of his participation in terrorist activities or he is included in the list of persons participating in it.
The decision to block accounts is immediately posted on the Internet, on the Rosfinmonitoring website. Restrictions can be lifted by the courts.
Phys. persons to whom such measures have been applied may be assigned monthly allowance in the amount of ten thousand rubles.
Property claims of third parties that have arisen as a result of blocking accounts can be satisfied through the court. Legal costs in this case will be reimbursed from the funds on the blocked accounts of the defendant or other property.
Violation financial institution provisions of this law may result in the revocation of her license. Persons guilty of violating the law are liable in accordance with the Civil, Administrative and Criminal Codes.
At the end of the video on how to secure your current account from blocking, in accordance with the latest edition of 115-FZ.
On the requirements of the Federal Law "On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism" dated 07.08.2001 No. 115-FZ, imposed on banks and their customers.
Bank– Closed joint-stock company"City Invest Bank";
Client- an individual (including an individual entrepreneur and a person engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation) or entity(including a credit institution) located or accepted for servicing by the Bank, as well as persons applying to the Bank to conduct transactions of a one-time nature, including transactions without opening bank account(contribution);
Beneficial owner- an individual who ultimately directly or indirectly (through third parties) owns (has a predominant participation of more than 25 percent in the capital) a client - a legal entity or has the ability to control the actions of a client;
Beneficiary– a person who is not involved in the operation, but for the benefit of which the client acts, including on the basis of an agency agreement, an agency agreement, commission and trust management, when conducting banking operations and other transactions;
Client Representative (Representative)– a person who makes transactions and/or operations with funds or other property on behalf of the Client, whose authority is confirmed by a power of attorney, agreement, law or act of an authorized person government agency or local self-government body, including persons who have been granted the authority to open / close, dispose bank account(deposit) using remote banking technology;
Law No. 115-FZ - the federal law dated August 7, 2001 No. 115-FZ “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism”.
Identification- a set of measures to establish information on clients, their representatives, beneficiaries, beneficial owners, determined by the legislation of the Russian Federation and internal regulatory documents of the Bank, to confirm the reliability of this information using original documents and (or) duly certified copies;
Blocking (freezing) non-cash funds or book-entry securities- prohibition to carry out transactions with funds or securities belonging to an organization or individual included in the list of persons in respect of which there is information about their involvement in extremist activities or terrorism, or an organization or individual not included in the specified list, but in in respect of which there are reasonable grounds to suspect their involvement in terrorist activities (including the financing of terrorism).
Provide the Bank with the information necessary for the Bank to comply with the requirements of Law No. 115-FZ, including information necessary to identify the client, his representatives, beneficiaries and beneficial owners. In addition, in accordance with this provision, the Client is obliged, at the request of the Bank, to submit documents that are the basis for conducting transactions.
2.1. When accepting and servicing clients, the Bank identifies the client, client representative and (or) beneficiary.
When identifying, the Bank establishes the following information:
Other information to be established in relation to legal entities, the legislator includes:
If the beneficial owner is not identified, the Bank may recognize the sole executive body of the client as the beneficial owner.
In order to identify the client, client representative, identify the beneficiary and beneficial owners, the client submits to the Bank the Questionnaire of the client-legal entity, the Questionnaire of the client-individual, representative of the client, individual entrepreneur(in one file) and, if the client has a beneficiary, the Questionnaire of the beneficiary (separately: legal entity, FL, individual entrepreneur).
2.2. Bank updates information about clients, client representatives, beneficiaries and beneficial owners at least once a year, and in case of doubts about the reliability and accuracy of previously received information - within seven working days following the day such doubts arise.
Identification client - an individual, client representative, beneficiary and beneficial owner not carried out:
Despite the presence of the above grounds for non-identification, the Bank will be obliged to conduct it in the event that the Bank's employees have suspicions that these operations are carried out for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism.
The bank suspends the client's operation, with the exception of transactions for crediting funds received to the account of an individual or legal entity, within two business days from the day when the client's order for its implementation must be executed, if at least one of the parties to the operation is an organization or individual, in relation to which measures have been applied to freeze (block) funds or other property, or a legal entity, directly or indirectly owned or controlled by such an organization or individual, or an individual or legal entity acting on behalf of or at the direction of such an organization or physical person.
After the expiration of the two-day period, the suspended operation may be carried out by the Bank in the usual manner only in the absence of any instructions regarding this operation from the side of Rosfinmonitoring.
4.1. The bank is prohibited conclude a bank account (deposit) agreement with the client in the event that the client, the client's representative fails to submit the documents necessary to identify the client, the client's representative.
4.2. The bank is prohibited open accounts (deposits) individuals without the personal presence of the person opening the account (deposit) or his representative.
4.3. The bank is prohibited open and maintain accounts (deposits) to anonymous owners, i.e. without providing an individual or legal entity opening an account (deposit) with the documents necessary for its identification, as well as to open and maintain accounts (deposits) for owners using fictitious names (pseudonyms).
4.4. The Bank has the right refuse to conclude a bank account (deposit) agreement with an individual or legal entity in case of suspicion that the purpose of concluding such an agreement is to perform operations for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism;
4.5. The Bank has the right terminate the bank account (deposit) agreement with the client in the event that two or more decisions are made during a calendar year to refuse to execute the client's order to perform a transaction on the basis of paragraph 5 of this leaflet.
4.6. The Bank has the right, when identifying a client, client representative, beneficiary, beneficial owner, updating information about them demand presentation by the client, client representative and receive from the client, the client's representative, identification documents, constituent documents, documents on state registration of a legal entity (individual entrepreneur).
The Bank has the right refuse to execute the client's order to complete the operation, with the exception of transactions for crediting funds received to the account of an individual or legal entity, for which the documents necessary for recording information are not submitted, in accordance with the provisions of Law No. 115-FZ, and also if the Bank's employees have suspicions, that the operation is carried out for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism.
Please note that the Bank's actions to suspend transactions, in accordance with paragraph 3 of this leaflet, and the refusal to perform operations, in accordance with paragraph 5 of this leaflet, are not grounds for the Bank's civil liability.
At present, the list of information requested by banks is comparable only with the data required from companies and individual entrepreneurs. tax office. BUKH.1C figured out what documents can be legally requested by banks, and what consequences await customers for not submitting them.
Banking activities are regulated by a huge number of various laws and by-laws. One of these documents is Federal Law No. 115-FZ of 07.08.2001 “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism”.
In pursuance of this law and, referring to its own norms, banks require a lot of various documentation from customers. It sometimes seems to clients that the requested data does not at all relate to the activities of banks and does not affect the interests of the state. But banks think differently. For example, banks, checking the purity of transactions, request documents under standard contracts that organizations have been entering into for many years. According to clients, such requirements of banks are, at a minimum, strange, and, at a maximum, contradict the current legislation. In particular, for example, in cases where the requested information is information protected by law.
Cheat sheet for the article from the editors of BUKH.1C for those who do not have time
1. Currently, banks require a lot of various documentation from customers, checking the purity of transactions.
2. To identify not only the client himself, but also to check and record all transactions made by him, which seem suspicious to banks, are required by the Federal Law of August 07, 2001 No. 115-ФЗ “On Counteracting the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism ” and Regulation of the Bank of Russia dated 10/15/15 No. 499-P “On Identification of Clients ...”.
3. Clause 14, Article 7 of Law No. 115-FZ establishes the obligation of customers to provide information necessary for banks to comply with legal requirements.
4. An analysis of Federal Law No. 115 of August 7, 2001 and Bank of Russia Regulation No. 499-P of October 15, 2015 allows us to conclude that the right of banks to demand documentation is practically unlimited in general.
Indeed, sometimes banks require the provision of personal information of employees of organizations, balance sheet, information about taxes paid, etc. Of course, such requests cause a lot of resentment among customers.
As we can see, the list of documentation is very extensive, and in some cases it may be even longer. Moreover, sometimes too little time is given for the preparation and submission of these documents, which causes even greater dissatisfaction of customers and their just indignation.
In this regard, a logical question arises: do banks have the legal right to demand all these documents from customers?
As the banks themselves explain, they request documents in such volumes for a reason. This is not their personal whim, but the requirements of the Federal Law of August 7, 2001 No. 115-FZ “On Counteracting the Legalization (Laundering) of Income….” and Bank of Russia Regulation No. 499-P dated October 15, 2015 “On Customer Identification…”.
These legal acts oblige credit institutions to identify not only the client himself, but also to check and record all transactions made by him, which seem suspicious to banks. And if the client can be checked at the stage of opening a bank account for him, then the bank can check the purity of the transaction only at the stage of making cash settlements.
What exactly does the data say normative documents? For example, Art. 7 of the Federal Law of August 7, 2001 No. 115-FZ states that when identifying a client, his representative, beneficiary, as well as updating information about them, banks have the right to require the submission of relevant documents.
Their list includes identity documents, constituent documents, documents on state registration of a legal entity (individual entrepreneur). The bank may also request other documents necessary to comply with the requirements of the law.
And clause 14 of article 7 of Law No. 115-FZ establishes the obligation of customers to provide information necessary for banks to comply with legal requirements.
Appendix 2 to Bank of Russia Regulation No. 499-P contains subclauses 2.7–2.9, which specify the powers of credit institutions to request documentation and information from customers.
Yes, pp. 2.7. establishes that the bank has the right to demand from its customers information and documents on the financial position, including financial statements and tax returns. At the same time, the credit institution, in the rules of its internal control, independently determines the number and types of documents that it uses in order to determine the financial position of the client.
In pp. 2.8. it is stated that the bank may require information about the business reputation of the client and reviews about him from other organizations that have business relations with him. The credit organization in the rules of internal control may also independently determine another type of documents that can be used to determine the business reputation of the client.
Finally, paragraphs 2.9. allows to demand information about the sources of origin of funds and other property of the client. The list of such information is again not exhaustive.
An analysis of Federal Law No. 115 of August 7, 2001 and Bank of Russia Regulation No. 499-P of October 15, 2015 allows us to conclude that the right of banks to request documentation is practically unlimited in general. At least, the legislation does not contain any such restrictions, nor does it contain an exact list of documents that must be provided at the request of a credit institution.
It turns out that banks have the right to request absolutely any documentation and in any volume. Is it really? BUKH.1C asked the head of the legal support department for professional participants to clarify the situation stock market GC "FINAM" Sergei Volodkin.
What documents can banks request in order to fulfill the requirements of the anti-money laundering law?
Any documents that banks will prescribe in their internal control rules. And usually this is an open list, because. initially it is impossible to determine the full list of documents that may be needed in order to determine whether this operation for the purpose of legalizing criminal proceeds or not. Those. any documents that may be required to analyze a particular transaction or the client's activities in general.
Can banks require information containing personal data of third parties? For example, the personal data of employees of a bank client company?
By law, banks are required to identify the client's representative (including the sole executive body), the client's beneficiary. And also take reasonable and affordable measures in the circumstances to identify the beneficial owner. If these are all individuals (and the beneficial owner is only an individual), and it does not matter whether they are employees of the company or not, then banks are required to require information containing their personal data.
What are the deadlines for submitting documents requested by the bank established by law?
According to some reports, the deadlines have been set, according to others, the regulations say that banks set them themselves. The Central Bank considers a normal period of 3-7 days, usually banks set such terms. If the bank sets long terms, the Central Bank considers that this was done on purpose to help the client evade the procedures of Federal Law No. 115 of August 7, 2001.
What happens if you do not provide the information requested by the bank?
The client's failure to provide the information necessary for the credit institution to implement the requirements of the law may be grounds for refusing to conduct a transaction. If the bank has already refused two or more times, it is obliged to terminate the agreement and close the client's account. The organization is automatically blacklisted, which the Central Bank sends to banks, and it is likely that no other bank will open an account for such an organization.
Also, the bank may disable the remote service system (Internet banking). Then the client will be able to manage the account only by submitting paper payments, which is not very convenient when the client is located, for example, in Vladivostok, and the bank is in Moscow. And even if the client brings such a paper payment, the bank will always be able to exercise the right to refuse to carry out the operation.
So, it turns out that banks not only have the right to demand documents from customers, but this is their responsibility. If this is not done, the bank may be fined a significant amount. The responsibility of banks is established by Article 15.27 of the Code of Administrative Offenses of the Russian Federation “Failure to comply with the requirements of the legislation on combating the legalization (laundering) of proceeds from crime and the financing of terrorism”.
Under this article, fines can reach 1 million rubles, and the bank's activities can be suspended for up to 90 days. As a result, the credit institution's banking license may be revoked.
It is clear that banks are trying to protect themselves and are trying to thoroughly check the calculations made by customers. It turns out that sending letters to customers about the provision of information is a common practice of credit institutions related to compliance with the laws of the Russian Federation and the requirements of the Central Bank of Russia.
The fact that banks can demand from their customers an almost unlimited amount of documents, BUKH.1C was also confirmed by the Association of Russian Banks (ARB).
As we were told by the chief specialist of the legal department of the ARB Veronika Kinsburskaya, the law does not regulate the question of what documents and information are subject to demand from individuals and legal entities in order to verify their non-involvement in extremist activities or terrorism. Also, the law does not define the procedure for credit institutions to conduct inspections of the activities of their clients. What exactly to request and how exactly to check customers, the bank decides on its own:
The exact list of documents and information requested from the client, the procedure for conducting customer verification, including the procedure and terms for submitting the requested documents to the bank, as well as the procedure for recording information received from the client, are established by each credit institution independently. They are prescribed in the rules of internal control.
If the bank suspects that any operations are carried out for the purpose of money laundering or terrorist financing, the bank may request from the client detailed information about the goals of the client's activities, business reputation, the purpose of the specific operation and the sources of origin of the money.
According to paragraph 2 of Art. 6 of Federal Law No. 115-FZ, a transaction with funds is subject to mandatory control if at least one of the parties is an organization or individual in respect of which there is information about their involvement in extremist activities or terrorism. But at the same time, all other suspicious transactions are subject to control.
Checking the activities of the client and the operations performed by him can be carried out if the bank employees have subjective suspicions that a particular operation is carried out for the purpose of money laundering or terrorist financing. The corresponding right is granted to banks in paragraph 3 of Art. 7 of Federal Law No. 115-FZ.
If the client fails to provide the information necessary for its verification, the bank may block the account, suspend expenditure operation, refuse to conclude an agreement, or terminate the bank account (deposit) agreement with such a client.
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Suffering in this whole situation, of course, are conscientious clients who conduct trading or production activities and have nothing to do with terrorism and money laundering. Often, the volume of information requested by the bank is so large that it is not physically possible to submit documents on time.
What should bank customers do in such situations? Here is the advice CEO consulting center "Profdelo" Tatiana Nikanorova:
Banks must take appropriate measures to prevent illegal transactions. We understand that for this they can request almost any documents and in any quantity. Accountants know banks that overcharge. If the documents are not submitted in full, the bank may close the current account. And here lies the catch: closing an account on such a basis often implies an increased rate for withdrawing funds from a current account to another bank. This is up to 10% of the amount. You can, of course, complain to the Central Bank of the Russian Federation, and he will already determine whether the request from the bank was legitimate or not. My recommendation for "white" firms: if you receive an excessive request, urgently withdraw money from such a bank and open an account elsewhere.
It can be concluded that customers will have to comply with the requirements of banks to provide documents and information. And if there is such an opportunity, it is better to send the documents in full and on time. If this is not possible, and the bank requires more and more, it is wiser not to wait for the account to be closed and switch to another credit institution for servicing.
This Regulation is based on the Federal Law of August 7, 2001 No. 115-FZ “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism” (Sobraniye Zakonodatelstva Rossiyskoy Federatsii, 2001, No. 33, Art. 3418; 2002, No. 30, Article 3029; No. 44, Article 4296; 2004, No. 31, Article 3224; 2005, No. 47, Article 4828; 2006, No. 31, Article 3446, Article 3452; 2007, No. 16, Article 1831; No. 31, item 3993, item 4011; No. 49, item 6036; 2009, No. 23, item 2776; No. 29, item 3600; 2010, No. 28, item 3553; No. 30, item 4007; No. 31, item 4166; 2011, No. 27, item 3873; No. 46, item 6406; 2012, No. 30, item 4172; No. 50, item 6954; 2013, No. 19, item 2329 ; No. 26, item 3207, No. 44, item 5641; No. 52, item 6968; 2014, No. 19, item 2311, item 2315, item 2335; No. 23, item 2934; No. 30, item 4214, item 4219; 2015, No. 1, item 14, item 37, item 58; No. 18, item 2614, No. 24, item 3367; No. 27, item 3945, item 3950, item 4001) (hereinafter - Federal Law of August 7, 2001 No. 115-FZ) and Federal Law of July 10, 2002 No. 86-FZ "On central bank of the Russian Federation (Bank of Russia)” (Sobraniye zakonodatelstva Rossiyskoy Federatsii, 2002, No. 28, item 2790; 2003, No. 2, item 157; No. 52, item 5032; 2004; No. 27, item 2711; No. 31, 3233; 2005, No. 25, 2426; No. 30, 3101; 2006, No. 19, 2061; No. 25, 2648; 2007, No. 1, 9, 10; 10, Article 1151; No. 18, Article 2117; 2008, No. 42, Article 4696, Article 4699; No. 44, Article 4982; No. 52, Article 6229, Article 6231; 2009, No. 1, Article 25; No. 29, item 3629; No. 48, item 5731; 2010, No. 45, item 5756; 2011, No. 7, item 907; No. 27, item 3873; No. 43, item 5973; No. 48, Article 6728; 2012, No. 50, Article 6954; No. 53, Article 7591, Article 7607; 2013, No. 11, Article 1076; No. 14, Article 1649; No. 19, Article 2329; No. 27, Article 3438, Article 3476, Article 3477; No. 30, Article 4084; No. 49, Article 6336; No. 51, Article 6695, Article 6699; No. 52, Article 6975; 2014, No. 19 2311, item 2317; No. 27, item 3634; No. 30, item 4219; No. 45, item 6154; No. 52, item 7543; 2015, No. 1, item 4, item 37; No. 27, article 3958, article 4001; No. 29, article 4348; "Official Internet portal of legal information" (www.pravo.gov.ru, October 6, 2015) establishes requirements for identification (including simplified identification) by credit institutions of clients, client representatives (including identification of the sole executive body as a client representative), beneficiaries and beneficial owners in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism (hereinafter referred to as AML/CFT).
1.1. The credit institution is obliged to identify before accepting for servicing:
an individual or legal entity, an individual entrepreneur, an individual engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation, to whom a credit institution provides a service on a one-time basis or who accepts a service that implies a continuing nature of the relationship, when performing banking operations and other transactions specified in Article 5 of the Federal Law "On Banks and banking"(As amended by the Federal Law of February 3, 1996 No. 17-FZ) (Bulletin of the Congress of People's Deputies of the RSFSR and the Supreme Soviet of the RSFSR, 1990, No. 27, Article 357; Collection of Legislation of the Russian Federation, 1996, No. 6, Article 492; 1998, No. 31, article 3829; 1999, No. 28, article 3459; 2001, No. 26, article 2586; No. 33, article 3424; 2002, No. 12, article 1093; 2003, No. 27, article 2700; No. 50, item 4855; No. 52, item 5033, item 5037; 2004, No. 27, item 2711; No. 31, item 3233; 2005, No. 1, item 18, item 45; No. 30, item 3117; 2006, No. 6, item 636; No. 19, item 2061; No. 31, item 3439; No. 52, item 5497; 2007, No. 1, item 9; No. 22, item 2563; No. 31, item 4011; No. 41, item 4845; No. 45, item 5425; No. 50, item 6238; 2008, No. 10, item 895; 2009, No. 1, item 23; No. 9 1043; No. 18, item 2153; No. 23, item 2776; No. 30, item 3739; No. 48, item 5731; No. 52, item 6428; 2010, No. 8, item 775; No. 27, Article 3432; No. 30, Article 4012; No. 31, Article 4193; No. 47, Article 6028; 2011, No. 7, Article 905; No. 27, Article 3873, Article 3880; No. 29, 4291; No. 48, 6728, 6730; No. 49, 7069; No. 50, 7351; 2012, No. 27, 3588; No. 31, Art. 4333; No. 50, art. 6954; No. 53, art. 7605, art. 7607; 2013, no. 11, art. 1076; No. 19, art. 2317, Art. 2329; No. 26, art. 3207; No. 27, Art. 3438, Art. 3477; No. 30, art. 4084; No. 40, art. 5036; No. 49, Art. 6336; No. 51, art. 6683; Art. 6699; 2014, no. 6, art. 563; No. 19, art. 2311; No. 26, art. 3379, Art. 3395; No. 30, art. 4219; No. 40, art. 5317, Art. 5320; No. 45, Art. 6144; Art. 6154; No. 49, Art. 6912; No. 52, Art. 7543; 2015, no. 1, art. 37; No. 17, Art. 2473; No. 27, Art. 3947, art. 3950; No. 29, art. 4355, art. 4385), as well as when carrying out professional activities in the securities market (hereinafter, respectively - operation, client);
a person (including the sole executive body of a legal entity), when making a transaction, acting on behalf of and in the interests or at the expense of the client, whose powers are based on a power of attorney, an agreement, an act of an authorized state body or local government, law (hereinafter referred to as the client's representative);
a person who is not a direct participant in the transaction, to whose benefit the client acts, including on the basis of an agency agreement, agency agreements, commissions and trust management, when conducting transactions with cash and other property (hereinafter referred to as the beneficiary).
Identification of a legal entity that is a representative of a client is carried out to the extent provided for clients - legal entities, with the exception of the information provided for in Appendix 2 to this Regulation.
When conducting identification (simplified identification), a credit institution assesses the degree (level) of the client’s risk in accordance with the Regulation of the Bank of Russia dated March 2, 2012 No. 375-P “On the requirements for the internal control rules of a credit institution in order to counter the legalization (laundering) of income received crime and financing of terrorism”, registered by the Ministry of Justice of the Russian Federation on April 6, 2012 No. 23744, on January 27, 2004 No. 31125, on March 6, 2004 No. 31531, on July 24, 2014 No. 33249, on April 10, 2015 No. 36828 (“Vestnik of the Bank of Russia" dated April 18, 2012 No. 20, dated February 6, 2014 No. 12, dated March 20, 2014 No. 29, dated August 13, 2014 No. 73, dated April 22, 2015 No. 36), (hereinafter - the Regulation of the Bank of Russia 375-P) regardless of the type and nature of the operation carried out by the client, or the duration of the relationship established with the client.
The assessment of the degree (level) of the client's risk is not carried out in cases where the identification (simplified identification) of the client is not carried out in the established cases.
1.2. A credit institution, with the exception of cases established by Federal Law No. 115-FZ of August 7, 2001, and these Regulations, is obliged to take reasonable and accessible measures in the circumstances to identify an individual who, in the final analysis, directly or indirectly (through third parties, in including through a legal entity, several legal entities or a group of related legal entities) owns (has a predominant participation of more than 25 percent in the capital) a client - a legal entity or directly or indirectly controls the actions of a client - a legal entity or an individual, including the ability to determine decisions accepted by the client (hereinafter referred to as the beneficial owner).
A credit institution makes a decision on recognizing an individual as a beneficial owner, taking into account the factors provided for by the internal control rules for AML/CFT purposes.
If the ownership structure and (or) organizational structure of a non-resident legal entity does not imply the existence of a beneficial owner and (or) a sole executive body (manager), the credit institution records information about this in the client's questionnaire (dossier).
1.3. Identification is not carried out:
in relation to a client, beneficiary, which is a state authority of the Russian Federation, a state authority of a constituent entity of the Russian Federation, a local government body, a state authority of a foreign state, the Bank of Russia;
in relation to beneficial owners in case of accepting for servicing clients who are the persons specified in this paragraph;
in relation to beneficiaries, if the client is the person specified in this paragraph.
The credit institution shall identify the representatives of the persons specified in this clause.
1.4. The credit organization has the right not to identify the beneficiary if:
the client is an organization carrying out transactions with funds or other property specified in Article 5 of the Federal Law of August 7, 2001 No. 115-FZ, or a person specified in Article 7.1 of the Federal Law of August 7, 2001 No. 115-FZ, and the beneficiary is a client of such client;
the client is a bank - a resident of a foreign state - a member of the Financial Action Task Force on Money Laundering (FATF), which has a rating score assigned to the Russian national rating agency or an international rating agency, and included in the list (register) of operating credit institutions of the relevant foreign state.
This clause shall not apply if the credit institution has suspicions in respect of the client specified in this clause, or in relation to a transaction with funds or other property of this client, that they are connected with the legalization (laundering) of proceeds from crime or terrorist financing.
1.5. If the beneficiary cannot be identified by the credit institution before accepting the client for servicing due to the absence of the beneficiary in the transactions planned by him to be performed, the credit institution shall identify the beneficiary (if any) within a period not exceeding seven business days from the date of the transaction .
1.6. A credit institution is obliged to update information obtained as a result of identification of customers, customer representatives, beneficiaries, beneficial owners within the time limits established by Federal Law No. Law of August 7, 2001 No. 115-FZ to update information obtained as a result of identification of customers, customer representatives, beneficiaries, beneficial owners.
Updating of information obtained as a result of identification of clients, client representatives, beneficiaries, beneficial owners of the client, as well as updating the assessment of the degree (level) of risk of the client is carried out in relation to clients being serviced by the credit institution at the time the credit institution becomes obliged to update the relevant information , assessment of the degree (level) of the client's risk.
Updating of information obtained as a result of identification of a client, client representative, beneficiary, beneficial owner may not be carried out if the following conditions are present in the aggregate:
the credit institution has taken reasonable and accessible measures in the circumstances to update information about the said persons, as a result of which the update of information was not completed;
from the date of taking measures to update information about the said persons, no operations were performed by the client or in relation to the client (with the exception of operations for crediting funds received to the account (deposit) of the client).
When a client applies to a credit institution to conduct a transaction, updating information about the specified client, client representative, beneficiary, beneficial owner must be completed before the operation is performed.
2.1. When identifying a client, client representative, beneficiary, beneficial owner, the credit institution independently or with the involvement of third parties collects information and documents provided for in this Regulation, documents that are the basis for banking operations and other transactions.
Subject to the requirements of this Regulation, a credit institution may collect other information (documents) independently determined by it in the internal control rules for AML/CFT purposes.
If a credit institution engages third parties in the collection of information and documents referred to in this paragraph, identification of a client, client representative, beneficiary, beneficial owner is carried out directly by the credit institution or by a person who, in the cases established by Federal Law No. 115 of August 7, 2001 -FZ, tasked with carrying out identification (simplified identification).
2.2. When identifying a client, client representative, beneficiary, beneficial owner, as well as updating information obtained as a result of their identification, a credit institution uses information from open information systems public authorities of the Russian Federation, pension fund Russian Federation, the Federal Fund for Mandatory health insurance located in the information and telecommunications network "Internet" (hereinafter referred to as the "Internet" network), or the Unified System of Interdepartmental Electronic Interaction, including:
information about lost, invalid passports, about the passports of deceased individuals, about lost blank passports;
information on whether the client, client representative, beneficiary and beneficial owner have information about their involvement in extremist activities or terrorism.
To establish the information provided for in this paragraph, the credit institution uses the relevant information services posted on the official website of the Federal Migration Service on the Internet or in the Unified System for Interdepartmental Electronic Interaction.
The credit institution is also entitled to use other sources of information that are legally available to the credit institution.
2.3. Updating of information obtained as a result of identification of a client, client representative, beneficiary, beneficial owner is carried out by a credit institution in accordance with the procedure established in the internal control rules for AML / CFT purposes, by obtaining documents and information directly from the client (client representative) and (or ) by referring to the sources of information specified in these Regulations.
2.4. A credit institution has the right not to re-identify a client, client representative, beneficiary, beneficial owner, re-simplified identification of an individual client if the following conditions are present in the aggregate:
identification of the client, client representative, beneficiary, beneficial owner has previously been carried out, and the client is being serviced;
the credit institution has no doubts about the reliability and accuracy of previously received information;
information about this client, client representative, beneficiary, beneficial owner is provided with prompt access on a permanent basis in the manner established by the credit institution in the internal control rules for AML/CFT purposes.
2.5. When establishing correspondent relations with a non-resident bank, with the exception of a bank that is a state (national) bank of a foreign state or an interstate bank, a credit institution collects the information provided for by and, and Appendix 2 to this Regulation, as well as information about AML/CFT measures.
When establishing correspondent relations with a state (national) bank of a foreign state or an interstate bank, a credit institution collects the information provided for in and and and Appendix 2 to this Regulation, as well as information on AML / CFT measures taken by such a bank.
The decision to establish correspondent relations with the banks referred to in this paragraph shall be made subject to the consent of the sole executive body of the credit institution or an employee of the credit institution authorized by it.
3.1. Documents and information on the basis of which the identification of the client, client representative, beneficiary, beneficial owner is carried out must be valid on the date of their presentation (receipt).
3.2. For identification purposes, the original documents or duly certified copies are submitted to the credit institution. If only part of the document is related to the identification of the client, client representative, beneficiary, beneficial owner, a certified extract from it may be submitted.
In case of submission of duly certified copies of documents, the credit institution shall have the right to require submission of the originals of the relevant documents for familiarization.
Separate information, the confirmation of which is not related to the need for the credit institution to study title documents, financial (accounting) documents of the client or documents proving the identity of an individual (for example, telephone number, fax number, address Email, other Contact Information), may be presented by the client (representative of the client) without their documentary confirmation, including verbally (orally).
The reliability of such information is confirmed by the client in the manner prescribed by the credit institution in the internal control rules for AML/CFT purposes.
Documents drawn up in full or in any part in a foreign language (with the exception of documents proving the identity of an individual issued by the competent authorities of foreign states, drawn up in several languages, including Russian), are submitted to a credit institution with a duly certified translation into Russian language. Documents issued by the competent authorities of foreign states, confirming the status of non-resident legal entities, are accepted by the credit institution subject to their legalization (these documents may be submitted without their legalization in cases stipulated by international treaties of the Russian Federation).
The requirement to provide a credit institution with documents with a duly certified translation into Russian does not apply to documents issued by the competent authorities of foreign states proving the identity of an individual, provided that the individual has a document confirming the right to legally stay on the territory of the Russian Federation (for example, a visa , migration card).
In the cases and in accordance with the procedure stipulated by the credit institution in its internal documents, the translation of a document (part of it) into Russian may be performed by an employee of the credit institution or an employee of a person who, on the basis of Federal Law No. , or an employee of a specialized organization providing translation services. The transfer must be signed by the person who made it, indicating the last name, first name, patronymic (if any), position or details of the identity document of the person who made the transfer.
3.3. The credit institution independently determines in the internal control rules for AML / CFT purposes the requirements for documents of a client that is a legal entity, an individual entrepreneur, an individual engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation, the period of activity of which does not exceed three months from the date of its registration and does not allow submitting to the credit institution the information (documents) specified in Annex 2 to this Regulation, as well as the requirements for documents of a legal entity - non-resident, submitted in accordance with subparagraph 2.7 of paragraph 2 of Annex 2 to this Regulation.
4.1. When conducting simplified customer identification, identification, including simplified identification, of a customer representative, beneficiary and beneficial owner is not carried out.
4.2. When making transactions using a payment (bank) card without the participation of an authorized employee of a credit organization - acquirer or another credit organization that is not a credit organization - issuer, the client is identified by the credit organization based on the details of the payment (bank) card, as well as codes and passwords. In this case, identification of the client's representative, beneficiary and beneficial owner is not carried out.
5.1. Information about the client, client representative, beneficiary, beneficial owner, given in this Regulation, is recorded by the credit institution in the client's questionnaire (dossier), which is a separate document or set of documents drawn up on paper and (or) electronic media.
The form of the client's questionnaire (dossier) is determined by the credit institution in the internal control rules for AML/CFT purposes.
At the discretion of the credit institution, other information may also be included in the client's questionnaire (dossier).
Questionnaire (dossier) of the client, filled in in electronic format, when transferred to paper, is certified by the signature of an authorized employee of the credit institution.
5.2. The information specified in the client's questionnaire (dossier) may be recorded and stored by the credit institution in electronic database data to which employees of a credit institution who identify a client, client representative, beneficiary, beneficial owner can be provided with online access on a permanent basis to verify information about the client, client representative, beneficiary, beneficial owner.
5.3. Questionnaire (dossier) of the client is subject to storage in the credit institution for at least five years from the date of termination of relations with the client.
6.1. This Regulation shall enter into force 10 days after the date of its official publication in the Bulletin of the Bank of Russia.
The credit institution in the rules of internal control for AML/CFT purposes independently determines the number and types of documents, from among those specified in this subparagraph, which are used by the credit institution in order to determine the financial position of the client.
2.8. Information about business reputation (reviews (in free written form) about the legal entity of other clients of this credit institution that have business relations with it; and (or) reviews (in free written form) from other credit institutions in which the legal entity was previously service, with information from these credit institutions on the assessment of the business reputation of this legal entity).
The credit institution in the internal control rules for AML / CFT purposes independently determines a different type of documents that can be used by the credit institution in order to determine the business reputation of the client if it is not possible to obtain information in the form of documents listed in this subparagraph.
2.9. Information about the sources of origin of funds and (or) other property of the client.
2.10. Details of the beneficial owner(s) of the client.
3. Information (documents) obtained in order to identify individual entrepreneurs, individuals engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation.
3.1. Information provided for in this Regulation.
3.2. Information on registration as an individual entrepreneur: the main state registration number of the entry on the state registration of an individual entrepreneur in accordance with the Certificate of state registration of an individual as an individual entrepreneur (Certificate of making an entry in the Unified State Register individual entrepreneurs records of an individual entrepreneur registered before January 1, 2004), place of state registration.
3.3. Information (documents) provided for in this application.
The information provided for in this Appendix shall be established in the event that a credit institution exercises the right provided for by subparagraph 1.1 of paragraph 1 of Article 7 of Federal Law No. 115-FZ of August 7, 2001.
______________________________
* For reference: Moody's Investors Service, Standard & Poor's, Fitch Ratings.
Annex 3
to the Bank of Russia
dated October 15, 2015 No. 499-P
"On Identification by Credit
client organizations,
client representatives,
beneficiaries and beneficiaries
owners in order to counteract
legalization (laundering) of income,
obtained by criminal means,
and financing of terrorism"
1. Information obtained as a result of identification of a client, beneficiary, representative of a client, beneficial owner, specified in and to this Regulation, or information obtained as a result of identification of a client carried out in accordance with this Regulation.
2. Information on the results of the verification of the presence (absence) in relation to the client of information about his involvement in extremist activities: the date of the verification, the results of the verification, if there is information about the client’s involvement in extremist activities or terrorism, the number and date of the list of organizations and individuals, in in relation to which there is information about their involvement in extremist activities or terrorism, containing information about the client, or the number and date of the decision of the interdepartmental coordinating body that performs the functions of combating the financing of terrorism, to freeze (block) funds or other property of the client.
3. Information on the degree (level) of the client's risk, including justification of the degree (level) of the client's risk in accordance with Bank of Russia Regulation No. 375-P.
4. Date of commencement of relations with the client, in particular the date of opening the first bank account, deposit account, as well as the date of termination of relations with the client.
5. Date of registration of the questionnaire, dates of updating the questionnaire (dossier) of the client.
6. Last name, first name, patronymic (if any), position of the employee of the credit institution who made the decision to accept the client for service, as well as the employee who filled out (updated) the client's questionnaire (dossier).
7. Other information at the discretion of the credit institution.
A new regulation has been approved on the identification by credit institutions of clients, their representatives, beneficiaries and beneficial owners in order to counter the legalization (laundering) of criminal proceeds and the financing of terrorism.
Amendments to the "anti-money laundering" law, requirements international standards in this area, as well as the experience of law enforcement practice accumulated by the Bank of Russia.
In particular, requirements have been established for the list of information received for identification purposes, the rules for recording and updating them, and the procedure for conducting simplified identification of individual clients.
The Regulation shall enter into force 10 days after the date of its official publication in the Bulletin of the Bank of Russia.
The Bank asks for clarification on the application of Article 7 of the Federal Law of August 7, 2001 N 115-FZ "On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism" (as amended and supplemented, effective from 24.01.2011 .).
Since 24.01.2011, the Bank has been obliged to identify the client's representative, as well as update information about him:
1) Please clarify whether it is necessary to identify persons entitled to the first or second signature of the client - legal entity according to the Signature and Seal Sample Card.
2) When identifying a client representative:
Whether the Questionnaire of a “customer representative” is filled in as an individual or the data on the client's representative should be included in the Bank's client's questionnaire;
Is it necessary to establish the degree (level) of Risk;
In what cases should re-identification be carried out?
Consultants' opinion
1. Starting from January 24, 2011, in order to comply with the provisions of Article 7 of Law No. 115-FZ, the Bank is obliged to identify :
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2. Consultants regard the identification of a client representative as an element of client identification, in connection with which:
It is lawful to include (record) information about the client's representatives in the Questionnaire (dossier) of the client;
When assessing the level of risk of the client performing transactions for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism, the information obtained as a result of identification of the client's representative should be taken into account;
The Bank has the right not to re-identify the client's representative on the grounds of clause 2.6 of Regulation No. 262-P, if such representative has already been identified by the Bank in accordance with Article 7 of Law No. 115-FZ and Regulation No. permanent access, and the Bank has no doubts about the accuracy of the information received earlier as a result of the identification program.
Rationale for consultants' opinion
Law No. 176-FZ. in the provisions of Law No. 115-FZ, in particular, the following changes are made, which come into force on January 24, 2011:
1) article 3, defining general concepts used in Law No. 115-FZ, added paragraphs of the following content (clause 2 of article 1 of Law No. 176-FZ):
"organization of internal control - a set of measures taken by organizations that carry out transactions with funds or other property, including the development and approval of internal control rules and programs for its implementation, the appointment of special officials responsible for compliance with these rules and the implementation of these programs;
implementation of internal control - implementation by organizations that carry out transactions with cash or other property, internal control rules and programs for its implementation, as well as compliance with legal requirements for identification clients, their representatives, beneficiaries, on documentary recording of data (information) and their submission to the authorized body, on storage of documents and information, on personnel training and education;
client - a physical or legal organization carrying out operations with funds or other property;
beneficiary - a person for whose benefit the client acts, including on the basis of an agency agreement, contracts of agency, commission and trust management, when conducting operations with cash and other property;
identification - a set of activities for establishing determined by this Federal Law customer information, their representatives, beneficiaries, confirmation of the accuracy of this information using original documents and (or) duly certified copies;
fixing data (information) - obtaining and fixing data (information) on paper and (or) other information carriers for the purpose of implementing this Federal Law ".
2) individual provisions article 7 Law No. 115-FZ establishing responsibilities organizations that carry out transactions with cash or other property will act in the next edition :
a) subparagraph 1 of paragraph 1:
« identify the client, client representative and (or) the beneficiary, with the exception of cases established by paragraphs 1.1 and 1.2 of this article, and set the following information :
in relation to individuals - last name, first name, and patronymic (unless otherwise follows from law or national custom), citizenship, date of birth, details of an identity document, details of a migration card, a document confirming the right of a foreign citizen or stateless person to stay (residence) in the Russian Federation, address of place of residence (registration) or place of stay, taxpayer identification number (if any);
in relation to legal entities - the name, taxpayer identification number or code of a foreign organization, state registration number, place of state registration and location address";
b) article 7, paragraph 5 setting bans on credit institutions , added the following paragraph:
conclude a bank account agreement (contribution) with a client when non-representation client, representative of the client documents required for identification client, representative client in cases established by this Federal Law”;
3) introduced paragraph 5.4 , Whereby "At identification client, client representative, the beneficiary, updating information about them organizations that carry out transactions with cash or other property, entitled to demand presentation client, client representative and receive from the client, client representative the documents, identification documents, constituent documents, documents on state registration of a legal entity (individual entrepreneur)".
Simultaneously, changes introduced by Law No. 176-FZ, did not touch the provisions of subparagraph 3 of paragraph 1 of Article 7 of Law No. 115-FZ, which establishes duty "systematically update customer information, beneficiaries".
In accordance with paragraph 1.6 of Instruction No. 28-I, when opening a bank account, a deposit account, a credit institution must identify the client in the manner prescribed by the legislation of the Russian Federation and establish whether the client is acting in his own interests or in the interests of the beneficiary. At the same time, when opening a bank account, an account on a deposit (deposit) the bank must set whether the person who applied to open the account is acting, on its own behalf or on behalf of and on behalf of another person who will be client. “If the person who applied to open an account is a representative of the client, the bank is obliged to identify the representative client, as well get documents confirming that he has the appropriate authority. The bank must also identify the person(persons), endowed (endowed) with the right of the first or second signature, as well as person (persons) authorized (authorized) to dispose of funds located on the account using an analogue of a handwritten signature, codes, passwords and other means confirming the existence of the specified powers (hereinafter referred to as the analogue of a handwritten signature)"(clause 1.7 of Instruction No. 28-I).
“The bank is obliged to have copies of documents (or information about their details) proving the identity of the client or the person whose identity must be established when opening a bank account, deposit account.
Information established by the bank when opening bank accounts, deposit accounts, including information about the client, his representative and beneficiary, must be documented in accordance with the requirements established by the legislation of the Russian Federation "(clause 1.8 of Instruction No. 28-I).
By virtue of clause 1.2 of Instruction No. 28-I the client may be denied opening banking accounts, deposit accounts, if no documents submitted confirming the information required for customer identification or provided false information, as well as in other cases provided for by the legislation of the Russian Federation.
Within the meaning of paragraphs 1 and 2 of Article 182 of the Civil Code of the Russian Federation Prepresentative- the person making the transaction on behalf and on behalf another person (represented, principal) by virtue of authority based on powers of attorney, indication of the law or an act of an authorized state body or local self-government body. A person acting in someone else's interest, but on his own behalf, as well as a person authorized to negotiate on possible future transactions, is not a representative.
In accordance with paragraph 1 of Article 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civic obligations through its bodies acting in accordance with the law, other legal acts and founding documents. Representative of a legal entity acting on its behalf by virtue of the provisions of the law and constituent documents (without power of attorney), is sole executive body(Subparagraph 1 of paragraph 3 of Article 40 of Law No. 40-FZ, paragraph 2 of Article 69 of Law No. 208-FZ).
At the same time, by virtue of paragraph 1 of Article 185 of the Civil Code of the Russian Federation power of attorney a written authorization issued by one person to another person for representation before other persons is recognized. A written authorization to conclude a transaction by a representative may be presented by the representative directly to the relevant third party. « Power of attorney on behalf of a legal entity issued signed his manager or other person authorized to this by its founding documents, with the application of the seal of this organization» (Clause 5 of Article 185 of the Civil Code of the Russian Federation).
Thus, Instruction No. 28-I still instructs credit institutions to identify persons acting on behalf of and on behalf of clients, but in a “truncated” volume compared to the requirements of Law No. 115-FZ.
In accordance with clause 4.1 of Instruction No. 28-I when opening a current account to a legal entity established in accordance with the legislation of the Russian Federation in a bank, among other documents provided signature sample card and seal impression card (hereinafter referred to as Card) and documents confirming the authority of persons specified in the Card, for the management of funds located on a bank account, and in the case when the agreement provides for the certification of the rights to dispose of funds on the account using an analogue of a handwritten signature, documents confirming the authority of persons entitled to use an analogue of a handwritten signature.
“Submission of a new card to the bank must be accompanied by the simultaneous submission of documents, confirming the authority of the said in the card of persons for the disposal of funds in the bank account, as well as documents proving the identity of the person (persons) endowed with the right of the first or second signature. Bank is not entitled to accept a new card without presenting the specified documents , except for cases when these documents were submitted to the bank earlier and the bank already has them”(clause 7.14 of Instruction No. 28-I).
"If the right of first or second signature is granted temporarily to persons, not specified in the card, to the card temporary cards are presented, decorated in the manner prescribed by this Instruction. At the same time, in the upper right corner on the front side of the card, a mark "Temporary" is put down.(clause 7.16 of Instruction No. 28-I).
In this way, persons indicated in the Card are representatives of a legal entity acting on behalf of and on behalf of a legal entity in relations with the Bank under a bank account agreement. This statement is true in relation to persons entitled to dispose of funds on a bank account (deposit) of an individual, legal entities established in accordance with the laws of foreign states, entrepreneurs operating without forming a legal entity, notaries and lawyers.
Therefore, starting from January 24, 2011, in order to comply with the norms of Article 7 of Law No. 115-FZ The bank is obliged realize identification:
- the sole executive body of the client - a legal entity;
Persons entitled to dispose of the funds on the bank account (deposit) specified in the Card, both clients of legal entities and individuals;
Other persons recognized as representatives of the client in accordance with applicable law.
Requirements for the identification by credit institutions of persons who are in their service (customers) and beneficiaries in order to counteract the legalization (laundering) of proceeds from crime and the financing of terrorism are determined by Regulation No. 262-P.
According to clause 1.1 of Regulation No. 262-P credit institution is obliged identify the person who is in her service (hereinafter - client), when performing banking operations and other transactions in accordance with Law No. 395-1.
« Client Details, beneficiary recorded in the questionnaire (dossier) of the client in accordance with the list given in Appendix 4 to this Regulation. At the discretion of the credit institution, other information may also be included in the client's questionnaire (dossier).
The questionnaire (dossier) of the client can be filled in on paper or in electronic form. The questionnaire (dossier) of the client, filled in electronically, when transferred to paper, is certified by the signature of an authorized employee of the credit institution.
The form of the client's questionnaire (dossier) is determined by the credit institution"(clause 2.3 of Regulation No. 262-P).
As noted above, for the purposes of applying Law No. 115-FZ, and, consequently, by-laws issued in its development, a client is understood as an individual or legal service person an organization carrying out transactions with cash or other property.
The totality of the above norms allows consultants to conclude that the identification of a client representative should be regarded as an element of client identification. Therefore, it is lawful to include (record) information about the client's representatives in the Questionnaire (dossier) of the client.
In accordance with clause 2.11 of Regulation No. 262-P, a credit institution must update information received as a result of customer identification, establishing and identifying the beneficiary, as well as revising the degree (level) of the Risk as the specified information changes or changes in the degree (level) of Risk , but at least once a year if the client's transaction is classified as advanced degree(level) Risk, and at least once every three years otherwise. The credit institution may also revise the degree (level) of the Risk in other cases in the manner and within the time limits established by the credit institution.
The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. No. 1307/10 came to the conclusion that the bank's obligation to identify the client is not limited to the moment of conclusion of the bank account agreement and remains throughout the entire period of the client's stay at settlement and cash services.
Given that the identification of the client's representatives, in our opinion, is one of the elements of the identification of the client itself, we believe that when determining the timing of updating information about the client's representatives obtained as a result of identification, one should be guided by the same principles as when updating information received in as a result of customer identification. At the same time, we consider it necessary to draw the attention of the Bank to the need for identification when submitting a new, as well as temporary, Card to the Bank. However, in our opinion, the Bank has the right not to repeat identification client representative on the grounds of clause 2.6 of Regulation No. 262-P, if such representative has already been identified by the Bank in accordance with Article 7 of Law No. 115-FZ and Regulation No. 262-P, for information about this client representative prompt access provided on a permanent basis, and the Bank there is no doubt about the accuracy of the information obtained earlier as a result of the implementation of the identification program.
In accordance with paragraph 2.2.2 of Letter No. 99-T, a credit institution, depending on the specifics of its clients' activities, uses the criteria for assessing the degree (level) of the risk of a client performing operations for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism, established in Appendix 1 to Letter No. 99-T, in addition to the criteria for assessing the degree (level) of risk established by Regulation No. 262-P.
Considering that the identification of a client’s representative is regarded by consultants as an element of the client’s own identification program, we believe that when assessing the level of risk of the client performing operations for the purposes of legalization (laundering) of proceeds from crime or financing of terrorism, it is necessary to take into account the information received as a result of the identification of the client representative.
Documents and literature
1. Civil Code of the Russian Federation - Civil Code of the Russian Federation (Part I) of November 30, 1994 No. 51-FZ, (part II) of 01/26/1996 No. 14-FZ, (part III) dated November 26, 2001 No. 146-FZ, (part IV) dated December 18, 2006 No. 230-FZ;
2. Law No. 115-FZ- Federal Law of the Russian Federation No. 115-FZ dated 07.08.2001 “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism”; Law No. 167-FZ- Federal Law No. 23.07.2010 No. 176-FZ “On Amendments to the Federal Law “On Counteracting the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” and the Code of the Russian Federation on administrative offenses»;
3. Regulation No. 262-P - Regulation of the Bank of Russia dated 19.08.2004. No. 262-P "On the identification by credit institutions of clients and beneficiaries in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism";
4. Instruction No. 28-I - Bank of Russia Instruction No. 14.09.2006 No. 28-I "On opening and closing bank accounts, deposits (deposits)";
5. Letter No. 99-T- Letter of the Bank of Russia dated 13.07.2005 No. 99-T "On guidelines on the development by credit institutions of internal control rules in order to counteract the legalization (laundering) of proceeds from crime and the financing of terrorism”.
Law No. 176-FZ enters into force 180 days after the day of official publication (Article 3 of Law No. 176-FZ). Published in the "Collection of Legislation of the Russian Federation" 26.07.2010.
« Credit organizations prohibited:"
“Under the bank account agreement, the bank undertakes to accept and credit incoming to the account opened by the client (account holder), cash, fulfill the client's instructions on transferring and issuing the appropriate amounts from the account and performing other operations on the account"(Clause 1 of Article 845 of the Civil Code of the Russian Federation).
With the exception of cases established by Law No. 115-FZ (clause 1.1 of Regulation No. 262-P).
