Peculiarities of regulation of legal relations under a nominal account agreement. Guardian's nominal account A prerequisite for concluding a nominal account agreement

On July 1, 2014, amendments to the Civil Code came into force, according to which Russians were allowed to open joint accounts with relatives. You will learn about the essence, prospects and conditions of service from this article.

Prerequisites

The first attempts to introduce a nominal account were made back in 2007. Then the market was actively developing mortgage lending... In other countries, 80% of real estate transactions are carried out using escrow accounts. The main idea of ​​their implementation is to reduce risks in transactions with intermediaries, which are real estate agents.

Changes in legislation appeared in 2014. Now citizens will be able to use two new services. Open a nominal account and make transactions with funds that belong to the beneficiary. Or use the services of an intermediary (escrow) when making transactions.

The essence

A nominal account is a safe deposit box in a bank that a third party opens to transact with the beneficiary's funds. The service contract can be concluded without the participation of the beneficiary. If a nominal account with Sberbank is opened for several beneficiaries, then the credit institution must take into account the interests of each of them in the context of special items, unless otherwise specified in the agreement.

The agreement should specify the procedure for obtaining information on the disposal of funds, as well as the level of participation of the person who opened the account and the beneficiary. The contract may impose on the bank the obligation to control the procedure and grounds for the use of funds. Suspension of operations, seizure and write-off of money for the obligations of the account holder are not allowed. In the case of the beneficiary, this will require a court authorization.

If a nominal bank account opens commercial organization, then it is reflected under article 40702. Then, according to the Regulation of the Central Bank No. 385-P, the institution is obliged to transfer information to the tax office. If an individual submits an application, then all movements will be displayed under Article 40802, which falls under the Federal Law "On Deposit Insurance". The bank's obligation to control escrow settlements is not provided for by law, that is, it will be regulated by an agreement.

Escrow

The bank opens a special account for accounting received from the owner (depositor), in order to transfer them to the beneficiary on the grounds provided for by the agreement. Escrow reward cannot be charged from the funds in the cell, if it is not provided for in the document. Such accounts are governed by the general regulations of the bank.

Crediting other funds of the depositor to the escrow, except for the amounts specified in the agreement, is unacceptable. The parties can use the money only when the agreed conditions arise. But they have the right to demand a printout of the invoice and other information that make up the account is closed at the end of the contract. Written requirements of one of the parties are not valid in this case.

A nominal account can be opened by an attorney, commission agent, agent, executor of the will to make transactions with the funds of the beneficiary. The agreement prescribes the procedure for obtaining information on the use of money. The main feature of escrow is that it is opened not to accumulate funds, but to fulfill obligations. Usually for real estate transactions. The scheme is as follows: the buyer of an apartment opens an escrow and deposits a certain amount on it. Upon completion of the transaction, the seller receives the money after providing documents confirming the transfer of ownership.

Destination

In Europe, a nominal account is used for settlements between counterparties, market participants, as well as during construction. It allows you to quickly receive a bank guarantee for favorable terms. This service also actively use lawyers and notaries in their activities. Online stores use it to ensure that the buyer pays for the goods. Any transaction that presupposes the presence of certain conditions can be carried out with such accounts. Especially if there is a need for additional control.

Alternative way

New accounts can also be used for personal purposes. For example, if a client maintains a brother who lives in another city, you can open a cell in the bank and control the spending of funds. The documents must be issued in the name of the relative, but the beneficiary is the person who finances him. Only the beneficiary has access to bank statements. Other restrictions can be specified in the contract. For example, indicate that money should only be used for payment utilities, and the withdrawal of cash from the account is prohibited.

Implementation problems

In world practice, joint accounts are widely used, but Russians have a lot of questions about the purpose of this transaction. Today, the real counterparts of escrow are the letter of credit and safe deposit box... But these services are not always offered by credit organizations.

The specialists also have a lot of questions. For example, who will become the agent's creditor if the bank's license is revoked? Most likely, it will have to be determined by the insurer or through a court. But for this, the procedures for payment of compensation must be clearly formalized at the legislative level.

Banks in Kazakhstan and Kyrgyzstan have long been offering mediation services to their clients. Opening and maintaining a nominee account is expensive. Depending on the institution and goals, the cost can range from 1 to 10 thousand rubles. You will have to pay three times more for opening a letter of credit in Kazakhstan. Russian banks for a long time they were in no hurry to offer escrow to clients, since the introduced law was not supported by the instructions of the Central Bank.

Insurance compensation

All Russians are protected by the state. Even the salary, which is transferred to the account, is insured. In the event of a bank bankruptcy, plastic owners must receive a refund within 14 days after the credit institution's license is revoked.

The calculation of the reimbursement includes all due interest on the deposit. But maximum amount per person is limited to 1.4 million rubles. (since 2015), that is, if the client has several open deposits in one bank, for example, in different branches, when insured event the total amount of funds in all accounts will be taken into account. Compensation for foreign currency deposits is paid in rubles at the exchange rate of the Central Bank. This is what the standard procedure looks like.

There are questions about joint accounts. If there are several beneficiaries, the share of each should have been clearly defined. The amount of compensation that the depositor will receive depends on this value. The legislation provides for the allocation of owners only when the money is seized and the contract is terminated. Instructions on how to liquidate an organization have appeared recently.

If, for example, several beneficiaries have opened a nominal bank account for more than RUB 14 million, then the volume insurance compensation will be calculated based on the overall balance, and not separately for each beneficiary. There is logic in this. If the cell is joint, then the amount of compensation should be distributed to all participants.

Since 2015, it is possible to sign a nominee account agreement only with institutions in which 50% of the capital belongs to the state. When introducing the service, banks faced a number of problems: the lack of the necessary software and internal instructions governing the service procedure. Therefore, the choice of organizations is limited.

Guardian's nominal account

Previously, all the amounts due to the ward were credited to his cell in the bank. The guardian could monthly withdraw an amount not exceeding living wage... Under the new rules, all payments due to a minor are credited to a nominal account opened for a third party. The guardian can use these funds in full without obtaining permission.

The nominal account is to which pensions, alimony, benefits and other amounts paid to support the ward are credited. Exceptions are salaries and scholarships for students. The nominal account of the guardian is opened upon presentation of a document from the guardianship authority. To conclude an agreement, you need to provide the beneficiary's data: full name, date and place of birth, certified photocopies of the person's identity document, address of residence. The nominal account agreement may provide for the possibility of transferring the balance of funds to a bank safe opened in another institution, or issuing them in cash, subject to the closure of the current guardian. Funds can be collected to pay for the obligations of the ward only by a court decision.

Security account

Amendments to the Civil Code created another type of bank cells. The sums of money received by the creditor from the debtor can be credited to a special security account. This opportunity appears after the transfer of a copy of the contract. At the request of the pledgee, the bank must provide information on the balance of funds, transactions performed, prohibitions and restrictions. All penalties are written off, in accordance with Art. 349 of the Civil Code of the Russian Federation, from the debtor's security account. Such a safe deposit box is not subject to the Rules on the Sale of Property (Art. 350-350.2 of the Civil Code of the Russian Federation), as well as the Rules for the collection of funds (Chapter 45 of the Civil Code of the Russian Federation).

Output

After amending the Civil Code on the market banking services new types of accounts appeared: nominal and escrow. Such cells can be opened by third parties, but the rights to cash owns a safe deposit box to which funds for the maintenance of the wards are credited. In world practice, escrow is opened when buying real estate in order to guarantee payment for the transaction. Russians are still wary of new service... And the number of institutions in which you can open a joint cell is limited.

The full text of Art. 860.1 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on Article 860.1 of the Civil Code of the Russian Federation.

1. A nominal account can be opened by the account holder to carry out transactions with funds, the rights to which belong to another person - the beneficiary. The rights to funds entering the nominal account, including as a result of their deposit by the account holder, belong to the beneficiary. The nominal account can open for transactions with funds, the rights to which belong to several persons - beneficiaries, with the exception of cases established by law. (Paragraph as amended on December 23, 2014 Federal law dated December 22, 2014 N 432-FZ.

2. An essential condition of the nominal account agreement is the indication of the beneficiary or the procedure for obtaining information from the account holder about the beneficiary or beneficiaries, as well as the basis for their participation in relations under the nominal account agreement.

3. A law or an agreement on a nominal account with the participation of the beneficiary may impose the obligation on the bank to control the use of funds by the account holder in the interests of the beneficiary within the limits and in the manner prescribed by law or agreement. December 2013 N 379-FZ)

Commentary on Article 860.1 of the Civil Code of the Russian Federation

1.From July 1, 2014, the Civil Code of the Russian Federation was supplemented with a new article regulating the nominal account agreement, which is a type of bank account agreement. Note that the institution of nominal account is used in practice developed countries... It has been used for a long time and successfully in structuring complex financial transactions, primarily in securitization transactions, as well as in project financing.

The purpose of the nominal account agreement is to strengthen financial, trading and other operations in commercial practice, in the course of which funds are credited to the bank accounts of persons to whom these funds do not belong to economic sense... Such persons should include, for example, a trustee, a nominee valuable papers, broker, notary, agent, commission agent, attorney.

Thus, a nominal account agreement can be used in tax relations when collecting taxes from the owner of such a nominal account and the beneficiary.

An analysis of clause 1 of the commented article shows that a nominal account is opened for the account holder to carry out transactions with funds, the rights to which belong to another person - the beneficiary. The funds of the nominal account do not belong to the account holder, they are accumulated in this account for a specific purpose, and the account holder can manage them, i.e. there is a targeted (conditional) deposit of funds.

The beneficiary, within the meaning of the commented article, means the person to whom it is intended. cash payment, or otherwise, - the recipient of profit, income, money, benefit.

In particular, a nominal account can be opened for the bondholder.

It goes without saying that all rights to funds entering a nominal account, including by depositing them by the owner of this account, belong only to the beneficiary.

Clause 1 of the commented article allows the opening of a nominal account to carry out transactions with funds, the rights to which may also belong to several persons at once - the beneficiaries.

2. Clause 2 of the commented article contains the essential (mandatory) terms of the nominal account agreement.

By general rule contractual terms fix the mutual rights and obligations of the parties under the contract. There are three groups of conditions: essential, ordinary and accidental. The Civil Code of the Russian Federation secured the essential terms of the agreement.

Essential are those conditions that are necessary and sufficient in order to consider the contract concluded, i.e. one that gives rise to rights and obligations for the parties (see Art. 432 of the Civil Code of the Russian Federation). The contract will be considered concluded only if the parties in the form required by law have reached an agreement on each of its essential terms. This circumstance is of particular importance, since otherwise the contract will be considered non-concluded. Thus, the essential conditions determine the stage (list of operations) performed by each party to the agreement and the ultimate goal (result) of joint actions.

The Civil Code of the Russian Federation establishes the following three conditions:
- indication of the beneficiary;
- the procedure for obtaining information from the account holder about the beneficiary or beneficiaries;
- the basis for the participation of the beneficiary or beneficiaries in relations under the nominal account agreement.

All other, except for the above, conditions of the nominal account agreement, therefore, from the point of view of the emergence of relations, do not have of particular importance... The terms of the contract, if they are not agreed (orally or in writing) directly by the parties, should be determined in regulatory legal acts.

3. Clause 3 of the commented article allows for the possibility of imposing on the bank the obligation to control the use of funds by the account holder in the interests of the beneficiary.

The limits and procedure for such control can be directly established in the law, or in the contract of the nominal account with the participation of the beneficiary.

This provision is an exception to the general rule established by paragraph 3 of Art. 845 of the Civil Code of the Russian Federation, according to which the bank is not allowed to exercise control over the direction of the client's use of funds in the account.

4. Applicable law:
- ФЗ dated 02.12.90 N 395-I "On banks and banking activities";
- Instruction of the Bank of Russia dated May 30, 2014 N 153-I.

Consultations and comments of lawyers under Article 860.1 of the Civil Code of the Russian Federation

If you still have questions about Article 860.1 of the Civil Code of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received from 21:00 to 9:00 will be processed the next day.

Nominal accounts are used by banks for individuals and legal entities, but what is the essence of this service? What are the options and for whom it may be convenient to open such an account, we will analyze in understandable terms.

What is a "nominal account" in a bank

First, let's give a definition of the terms that are mandatory for understanding in this matter.

The concepts are introduced in article 860 of the Civil Code of the Russian Federation (part 2) of 01.26.1996 N 14-FZ (as amended and supplemented, entered into force on 01.09.2018).

Nominal account Is a type of bank account that is opened by one person (account holder), and the funds in the account belong to another person (beneficiary).

Account owner- a person who has entered into an account opening agreement with the bank.

Beneficiary- the person who owns the rights to all funds in the nominal account. He is also called the beneficiary, although this may seem somewhat illogical.

Schematic representation of the essence of any nominal account:

Short: The money of one (the beneficiary) is managed by the other (the owner of the account), on the terms prescribed in the contract. The bank stores money and controls transactions.

Such accounts can be used by both individuals and legal entities.

Bank

What the bank does:

• Opens an account.
• Keeps money on it, calculates interest.
• Fulfills the conditions stipulated in the contract and the law.
• Contact the beneficiary when the account holder requests changes to the subject of the agreement or closes the account.
• When the account is closed, it transfers the balances to another nominal account.
• Write off payments for their services.
• Does not allow the suspension of the operation (cannot be arrested).

Beneficiary

What the beneficiary can do:

• Has rights to all funds on the account (it does not matter who deposited them, even if it was the owner).
• Transfer and withdraw money.
• Agree on any operations.
• Require supporting documents on account transactions.
• Require the bank to provide information constituting bank secrecy.

Account owner

What an account holder can do:

• Withdraw funds for operations agreed in the contract.
• Deposit money into the account.

What the account holder needs:

• Provide documents to confirm the purpose of the expenses.
• Other, as specified in the contract.

Contract

What can be indicated when drawing up a contract:

• It is obligatory to indicate the beneficiary (there may be several of them).
• The beneficiary may not participate in the signing of the contract.
• Grounds for the participation of all parties.
• Control over the use of funds by the owner in the interests of the beneficiary.
• You can set any rules and restrictions on the use of funds by the parties.

What are the options for a nominal account

There are several very similar concepts that are used for the activities indicated in the diagram at the beginning of the article.

The meaning is always the same - there is an account, there are several parties, and it is not their owner who controls the money, but the other party.

Depending on the requirements for the bank, participants in transactions and funds on the account, one can distinguish:

• Nominal account.
• Escrow - this "account" can store not only money, but also property, and not only a bank, but also law firms, specialized companies (escrow agents) can act as a guarantor.
• Public escrow account - Payments by the account holder can only be made within the organization. The owners of such accounts can be, for example, bailiffs.
• Letter of credit - most often 2 parties are involved - the buyer, the seller and 1 bank on each side. In this case, the buyer's bank can provide co-financing (crediting).
• Collateral account - the money in this account can be used, but the amount must not be reduced to less than the secured obligation. The bank and two parties are involved.

Formally, the Civil Code considers 3 account options: nominal, escrow and public deposit.

Detailed theoretical calculations are presented in a video from the head of the Department of Civil Law of the Faculty of Law of the National Research University Higher School of Economics.

Who can be a participant:

Parties:

• Child, orphan - parent, guardian.
• Disabled, incapacitated - guardian.
• Buyer-Seller (legal entity and individual).
• FTS - notary - debtor.

Guarantee: Bank, law firm, agent company.

Account finances: social payments, pensions, benefits, payment for goods / services, payment for an apartment and other real estate, debt reclaimed, etc.

Comparison and features

Many applications special accounts leads to some confusion in the understanding of terminology, for example, in real estate transactions in different banks nominal account, letter of credit, and escrow may apply. This does not change the idea - safe box is replaced by an account.

There are various specific nuances that are important to understand in each specific case. A description of all the pitfalls for general situations is suitable for a textbook, but we are trying in simple words explain the essence.

Here are some distinguishing points for the different account options to help you grasp the possible difference.

Table: Comparison of nominal accounts.

Advantages and disadvantages

Financial relations between the two parties with the involvement of a third, guaranteeing the "purity" of relations have always been in demand. The main advantages of the considered accounts follow from this:

1. The main advantage of nominal accounts is - guarantee... This means that there are those responsible for compliance with all the rules prescribed in the contract.
2. The procedure for assessing the success / correctness of actions performed by the parties is clear.
3. It is known what will happen in the event of unauthorized actions / disruption of the transaction.
4. The interests of all parties are maximally observed and enshrined in the contract.
5. Most of the risks of “mistrust” have been removed.

What can be attributed to the disadvantages:

The system for working with nominal accounts is very young, for only a few years banks have been trying to focus on Foreign experience and adapt it to domestic realities. Because of the lack of training at all stages, difficulties arise:

• The increase in the terms of operations is a deviation from the declared ones.
• Lack of a sufficient number of qualified specialists.
• The need to study the nuances for each specific atypical case.

The revision of the Civil Code of the Russian Federation in 2014 was supplemented with 10 clauses on Nominal Accounts and Escrow (clauses 860.1 - 860.10). In the present edition there are already 15 supplemented and amended items. Work in this direction is being actively carried out, since many issues in the laws require detailed elaboration and amendments taking into account feedback from banking and legal practice.

Practice of using nominal accounts

Let's analyze the main typical application situations - they are actively used by bank clients.

Per child for guardians

In a situation where it is necessary to obtain social payments in favor of children, it will be a convenient option to use a nominal account for a child.

In this case:

The beneficiary is a child, in whose name the payments are made.

Account holder - parent / guardian.

Such nominal accounts are provided only for money intended for the child and should be spent on the maintenance of the ward.

What payments can come here: alimony, payments for the maintenance of a minor, benefits, survivor's pension, etc.

The essence: the account is opened in the name of the guardian, but the money formally belongs to the child. And should be spent in the best interests of the child.

Protection: funds will not be seized if the guardian has any debts for which collection is possible.

Important: not all payments will go to such an account. What funds will not come - remuneration for guardians, i.e. money directed to guardians.

What is the advantage - you can spend finances without asking for additional permission from the guardianship authorities. But as before, it is imperative to report to custody by February 1. The reports do not cover everyone. For example, parents receiving alimony do not need to submit reports.

What are the disadvantages - the guardianship authorities can request (despite the presence of banking secrecy) from the bank information on spending funds from a nominal account - an electronic or written statement, which is impossible for other personal accounts, for example, for deposits. Pay attention to the possibilities of remote work under a distance contract banking services... It is possible that many transactions will not be available through the online bank. It is necessary to clarify this when applying for the opening, and familiarize yourself with the tariffs.

If there are 3 children, then you will have to open 3 accounts - 1 account holder and 3 beneficiaries. Necessary additional statement to transfer all funds to one separate regular account.

To open, you do not need permission from the guardianship authorities, you only need documents:

• Passport.
• Confirmation of guardianship.
• Child's passport / birth certificate.

After opening, you can receive the details of the account and transfer them to the officials in the body that makes regular transfers to the child.

Detailed comments on the interaction with nominal accounts from the lawyer for family and child law Zharov A.A.

Other social payments

The situation looks similar with other payments for compensation for harm to health, for the loss of a breadwinner, alimony, pensions, benefits, and any other funds paid to the holder:

• minors,
• incapacitated
• citizens with limited legal capacity.

The package of documents is changing, which must be clarified when opening an account.

In all these cases:

Beneficiary- this is the one for whom the money is allocated.

Account owner- trustee, guardian.

Nominal invoice for the sale of an apartment / mortgage

In 2017, Sberbank's DomClick service introduced the Safe Settlement Service service. It is thanks to the use of nominal accounts that such a service is possible.

In fact, an account is used instead of a safe deposit box.

Beneficiary: real estate seller (beneficiary).

Account owner: depends on the organization, in Sberbank it is the central nervous system.

• The risks of cash manipulation are removed,
• Reducing the cost of the procedure.
• The speed of registration increases.
• Additional guarantees for both the seller and the buyer.
• Decrease in document circulation (even in comparison with a letter of credit, which is also actively used for such transactions).

What the deal looks like, the main steps:

• A contract is drawn up.
• A nominal account is opened for the buyer.
• The buyer transfers the amount required for the purchase.
• The bank blocks the money until the terms of the agreement are fulfilled.
• Real estate registration, confirmation of the change of owner, obtaining USRN data.
• The money is transferred to the seller's personal account.

In the opinion of the editors, a more appropriate term for such an account would not be "nominal", but "escrow" - after all, it is the blocking of the amount until certain conditions are met that is its characteristic feature.

Most likely, the terminology used is intended not to scare off customers with new strange words. In fact, as we found out above, in the Civil Code of the Russian Federation, 3 accounts are nominal: escrow, public deposit and directly - nominal.

The rights to funds entering the nominal account, including as a result of their deposit by the account holder, belong to the beneficiary.

A nominal account can be opened to carry out transactions with monetary funds, the rights to which belong to several persons - beneficiaries, with the exception of cases established by law.

An essential condition of the nominal account agreement is the indication of the beneficiary or the procedure for obtaining information from the account holder about the beneficiary or beneficiaries, as well as the basis for their participation in relations under the nominal account agreement.

A law or an agreement of a nominal account with the participation of the beneficiary may impose the obligation on the bank to control the use of funds by the account holder in the interests of the beneficiary within the limits and in the manner prescribed by law or the agreement.

Article 8602. Conclusion of a nominee account agreement

The nominal account agreement is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434), with the obligatory indication of the date of its conclusion.

A nominal account agreement can be concluded with or without the participation of the beneficiary.

The nominal account agreement with the participation of the beneficiary is also signed by the beneficiary.

Failure to comply with the form of the nominal account agreement entails its invalidity. Such an agreement is null and void.

In the event that the funds of several beneficiaries are accounted for on a nominal account, the bank keeps records of the funds of each beneficiary, except for cases when, in accordance with the law or the nominal account agreement, the obligation to record the funds of each beneficiary is imposed on the account holder.

Article 8603. Operations on a nominal account

A law or an agreement of a nominal account may limit the range of operations that can be performed at the direction of the account holder, including by determining:

1) persons to whom funds can be transferred or issued;

2) persons, with the consent of whom the operations on the account are performed;

3) documents that are the basis for the performance of transactions;

Other circumstances.

Article 8604. Providing information that makes up the banking

Secret, to the beneficiary under the nominal account agreement

The beneficiary under the agreement of the nominal account has the right to demand from the bank the provision of information constituting bank secrecy, if such a right is granted to the beneficiary by the agreement.

2. Under a nominal account agreement with the participation of the beneficiary, the beneficiary shall have the right to require the bank to provide information constituting banking secrecy.

Article 8605. Arrest or write-off of funds on

Nominal account

Suspension of operations on a nominal account, seizure or write-off of funds in a nominal account for the obligations of the account holder, with the exception of the obligations provided for in Articles 850 and 851 of this Code, is not allowed.

The seizure or write-off of funds from a nominal account for the obligations of the beneficiary is allowed by a court decision, the cancellation of funds is also allowed in cases stipulated by law or by the nominal account agreement.

Article 8606. Change and termination of the nominee account agreement, replacement of the nominee account holder

The nominal account agreement with the participation of the beneficiary may be changed or terminated only with the consent of the beneficiary, unless otherwise provided by law or the nominal account agreement.

If the bank receives an application from the account holder to terminate the nominal account agreement, the bank is obliged to immediately inform the beneficiary about it.

If the owner of the nominal account is the trustee or trustee of the beneficiary, then upon termination of the duties of the guardian or trustee, such owner of the nominal account is replaced by another owner, who has been appointed as the trustee or trustee of the beneficiary in the manner prescribed by law. Upon termination of guardianship or trusteeship in cases stipulated by law, including when the beneficiary reaches the age of majority, the nominal account agreement is terminated, the balance of funds at the request of the beneficiary is issued to him or transferred to his other bank account.

4. Upon termination of the nominal account agreement, the balance of funds is transferred to another nominal account of the owner or issued to the beneficiary, or, unless otherwise provided by law or the nominal account agreement or does not follow from the nature of the relationship, at the instruction of the beneficiary, is transferred to another account. ";

g) after Article 8606 add the following paragraph:

"§ 3. Escrow account";

h) Articles 8607 - 86010 shall be stated as follows:

“Article 8607. Escrow account agreement

1. Under the escrow account agreement, the bank (escrow agent) opens a special escrow account to record and block funds received from the account holder (depositor) in order to transfer them to another person (beneficiary) when the grounds provided for by the escrow account agreement arise. The rights to the funds in the escrow account belong to the depositor before the date on which the grounds for transferring funds to the beneficiary arise, and after that date to the beneficiary. The disposal of funds in the escrow account is carried out in the manner prescribed by this paragraph.

Federal laws of December 21, 2013 N 379-FZ and N 367-FZ amended parts one and two of the Civil Code, according to which Ch. 45 "Bank account" is supplemented by Art. Art. 860.1 - 860.10, and the paragraph "Pledge" of chap. 23 is set out in full in new edition... As a result, since July 1, 2014, three new types of accounts have appeared in banks: escrow accounts, nominal accounts - as a kind of bank account obligations - and collateral accounts.
Let's consider them in order.

Nominal account

The rules on the nominal account are contained in Art. Art. 860.1 - 860.6 of the Civil Code.
A nominal account is needed to carry out transactions with funds, the rights to which belong to another person or other persons - the beneficiary (beneficiaries). A nominal account agreement can be concluded with or without the participation of the beneficiary. The rights to funds entering the nominal account, including as a result of their deposit by the account holder, belong to the beneficiary.
The contract must indicate the beneficiary or the procedure for obtaining information about it from the account holder. In addition, the contract must define the basis for the beneficiary's participation.
The option of accounting for funds on the nominal account of several beneficiaries is possible. In this case, the account is divided into special sections. But by law or by agreement, the obligation to account for the funds of the beneficiaries may be assigned to the account holder.
The agreement may stipulate the obligation of the bank to control the use of funds by the account holder in the interests of the beneficiary within the limits and in the manner prescribed by law or agreement.
Suspension of operations on a nominal account, seizure or write-off of funds in a nominal account for the obligations of the account holder is not allowed. The exception is the obligations under Art. Art. 850 and 851 of the Civil Code, that is, in cases where the bank credits the account and the bank charges funds from the account for the costs of performing transactions on the account, unless otherwise provided by the agreement.
For tax relations, the question of the possibility of collecting debt from the owner of the nominal account and the beneficiary is important.
The new rules allow the withdrawal of funds from a nominal account in cases stipulated by law or the nominal account agreement. By the way, about the law. By virtue of paragraph 1 of Art. eleven Tax Code the norms of this Code take precedence over the norms of non-tax laws. Insofar as Civil Code is not special tax law, the contradiction will be resolved in favor of the Tax Code, which provides the inspectorate with the right to collect tax arrears and fees from the owner of the bank account (clause 1 of article 46 of the Tax Code of the Russian Federation). Therefore, the bank has no reason to refuse to execute the collection order. Since the funds belong to the beneficiary, he remains unprotected.
The flip side of the coin is that these same reasons prevent the collection of the amounts of the beneficiary-taxpayer, since the Tax Code allows collection only from the taxpayer.
There is a contradiction between the Civil and Tax Codes: the considered norm of the Civil Code allows the arrest or withdrawal of funds from the account under the obligations of the beneficiary by a court decision.
In general, the inclusion of provisions on the nominee account agreement reinforces the commercial practice of financial, trading and other transactions, when money is credited to the bank accounts of persons who do not own it, in favor of the beneficiary (for example, the bankruptcy trustee, auction organizer, broker, agent, nominee holder of securities papers, notary, commission agent, attorney, etc.).

Escrow account

Sometimes the deals are not concluded or are made out by several agreements due to distrust of the partner. For example, when settlements under mixed contracts, the sale of real estate, enterprises, etc. A safe deposit box was often used in these cases. But now the parties can resort to issuing an escrow account.

For reference. Escrow (from the English Escrow) in Anglo-Saxon law means the deposit of a sum of money from a third party in the name of another person so that it would be issued to him only after a certain condition is met. Simply put, it is an escrow or security deposit.

It keeps records of valuables, documents or funds until certain circumstances occur, such as the fulfillment of obligations. The transfer of investments from the escrow account occurs after the fulfillment of obligations by both parties, which guarantees the execution of the transaction and minimizes the risks of non-fulfillment of mutual obligations. This is a way of simultaneously making settlements and securing agreed obligations.
In foreign law, this is a three-way transaction between an escrow agent, a seller and a buyer. One party transfers (deposits) property (money, documents, other valuables) to a licensed escrow agent until the other party fulfills its obligations.
Escrow agent is an independent person with no interest in the transaction, an attorney for each party who opens an account. He monitors the general progress of the sale and monitors the fulfillment of all contractual conditions. The agents are banks, specialized firms, legal companies and other escrow agents. At the same time, the risk of loss of reputation and the application of sanctions (fines, license revocation, etc.) guarantees the reliability and efficiency of the agent's activities. If the terms of the contract are violated, the property is returned to the owner from the account.
Convenient and cost-effective, the escrow account is widely used abroad: in trade deals instead of a letter of credit, in real estate transactions, payments on judgments, wholesale of business assets, payment of taxes and debts.

Example. One party transfers the exclusive right to the program to the other party without the program code.
When using an escrow account, this code is deposited.

Russian legislation, of course, provides for measures to guarantee the fulfillment of obligations.

How to open a nominal account of a ward with a bank and how to withdraw money from it

This is a forfeit, a bail, bank guarantee, letter of credit, etc. But now the Civil Code suggests using an escrow account as well.
The relations of the parties in connection with the opening, maintenance and closure of an escrow account apply general provisions on a bank account, unless otherwise provided by the Civil Code or follows from the essence of the relationship between the parties. Special rules for escrow are established by the rules of Art. Art. 860.7 - 860.10 of the Civil Code.
The bank (escrow agent) opens a special escrow account for accounting and blocking of funds. The owner of the account (depositor) deposits money into the account to transfer it in the future to another person (beneficiary) if the grounds provided for by the agreement between the bank, depositor and beneficiary arise. As a general rule, the escrow agent fee cannot be collected from the funds in the escrow account. But the parties can change it at their discretion.
Crediting of funds other than the deposited amount to the escrow account is not allowed. Without the emergence of contractual grounds, neither the depositor nor the beneficiary has the right to dispose of the money on the account. However, these conditions can be changed by the contract.
When the grounds stipulated by the agreement for the escrow of funds appear, the bank is obliged to issue the deposited amount to the beneficiary or transfer it to the account indicated by him.
The law provides for the right of the depositor and the beneficiary to require the bank to provide information constituting banking secrecy.
The bank closes the escrow account upon the expiration of the agreement or its termination for other reasons. But it should be borne in mind that the rule that the bank account agreement is terminated at the request of the client at any time does not apply in this case.
Escrow in the Civil Code is very similar to a letter of credit, where one party opens an account, and the bank, at its direction, pays funds to the other party (Article 867 of the Civil Code of the Russian Federation). In Anglo-American law, escrow is used outside of banking practice, which makes it different from a letter of credit. In Russia, in contrast to the West, only cash escrow is used, and the agents are banks. Therefore, the Civil Code does not prescribe the guarantees of the good faith of the escrow agent (bank).
Escrow is committed to growing business. The innovations are the first and very significant step in the formation of a civilized escrow service in Russia. They can increase the level of confidence in the Russian civil circulation and, possibly, withdraw some of the transactions with Russian assets from foreign jurisdictions.

Security account

The security account is not designated as a separate bank account in the Civil Code. But it is defined in the chapter devoted to securing the fulfillment of obligations and, in particular, to the pledge (subparagraph 1 of paragraph 3 of the first part of the Civil Code of the Russian Federation). The rules on the pledge of rights under a bank account agreement apply to bank deposit(Clause 8 of Article 358.9 of the Civil Code of the Russian Federation).
Article 358.6 of the Civil Code makes it possible to conclude an agreement on the pledge of rights. In accordance with the law or such an agreement, the money that the debtor of the pledger received in fulfillment of the obligation, the right or claim for which is pledged, is credited to the pledge account. The owner of the account is the pledger.
The pledge arises from the moment the bank is notified of the pledge of rights and a copy of the pledge agreement is provided to it. If the pledgee is a bank that has entered into a pledge account agreement with the client (pledger), the pledge arises from the moment of the conclusion of the pledge agreement bank account(Article 358.11 of the Civil Code of the Russian Federation).
In order to amend or terminate the pledged bank account agreement, the parties must obtain the consent of the pledgee (Article 358.13 of the Civil Code of the Russian Federation).
At the written request of the pledgee, the bank provides him with the necessary information. For example, about the balance of funds on the pledge account, about operations and the requirements presented, about prohibitions and restrictions imposed on the account. The banking rules establish the procedure and terms for providing information. In the unregulated part, a tripartite agreement is drawn up on this between the bank, the pledger and the pledgee (clause 2 of article 358.2 of the Civil Code of the Russian Federation).

On a note. Banks provide information on nominal, pledged and escrow accounts to third parties in the cases and in the manner prescribed by the Civil Code (Article 26 of the Law "On Banks and Banking Activities").

The pledger is granted the right to freely dispose of funds on the pledged account (clause 1 of article 358.12 of the Civil Code of the Russian Federation). If the agreement is concluded for a fixed amount of money, then without the written consent of the pledgee, the pledger has no right to demand a reduction of this amount in any way (for example, by writing off), and the bank has no right to execute such orders (clause 3 of article 358.12 of the Civil Code of the Russian Federation).
But the debtor may not perform or improperly perform his obligations secured by the pledge. The pledgee must notify the bank about this in writing. And the bank in this case is not entitled to execute such orders of the pledgor, as a result of the execution of which the amount of funds on the pledged account will be lower than the amount equivalent to the amount of the secured obligation specified in the pledge agreement (clause 4 of article 358.12 of the Civil Code of the Russian Federation).
In accordance with Art. 358.14 of the Civil Code, when foreclosure on pledged rights under a bank account agreement (Article 349 of the Civil Code of the Russian Federation), the pledgee's claims are satisfied by writing off the bank based on the order of the pledgee of funds from the pledger's pledge account and issuing them to the pledgee or crediting them to the account specified by the pledgee. The rules on the sale of pledged property (Articles 350 - 350.2 of the Civil Code of the Russian Federation) do not apply in these cases.

Note! The rules for writing off funds provided for by the provisions of Ch. 45 of the Civil Code on the bank account, do not apply to funds in the security account.

The mode of the pledge account can be used both for encumbrance of the funds contained on it, and for crediting to it the amounts due to the pledgor under the pledge agreements of other property (insurance compensation for the loss or damage of pledged property; income from the use of pledged property; monetary amounts subject to payment to the pledger for the fulfillment of the obligation, the right (claim) for which is pledged).
Simultaneously with the entry into force of Law N 367-FZ, the Law of May 29, 1992 N 2872-1 "On Pledge" became invalid.

Bank of Russia Instruction

From July 1, 2014 also entered into force new Instruction Bank of Russia dated 05/30/2014 N 153-I "On the opening and closing of bank accounts, accounts for deposits (deposits), deposit accounts" (hereinafter referred to as the Instruction).
The Instruction introduced significant changes concerning the new types of accounts discussed above. It prescribes the order and specifics of their opening and closing. So, when opening a nominal account, escrow account and a pledge account, the bank must have information about the beneficiary and the pledge holder, as well as the grounds for the beneficiary's participation.
When closing a nominal account, the bank transfers the balance of funds to another nominal account or another account of the client, or issues them in cash.
Also, the Instruction introduced changes concerning the signature sample card. In particular, when opening an escrow account, such a card may not be presented. Even in cases where neither the beneficiary nor the escrow account participant is entitled to dispose of funds from the account. The card is not required if there is a condition in the agreement that transactions on the account are carried out on the basis of the order of the beneficiary, and banking operation orders are signed by the bank.
The instruction contains references to Law No. 115-FZ "On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism".

When concluding a bank account agreement, a credit institution is obliged to take reasonable and accessible measures to identify beneficial owners.
The new Instruction regarding the introduction of new types of special accounts fully reflects the realities of civil legislation.

Banks separately

According to paragraph 1 of Art. 86 of the Tax Code, the bank is obliged to inform about the opening or closing of an account, about changing the account details of an organization or an individual entrepreneur.
From August 6, 2014, banks must also report the opening or closing of an account. natural person who is not an individual entrepreneur.
The bank bears these obligations in relation to the nominal account and the escrow account.
The nominal account is opened by the account holder, the escrow account is opened by the agent. The account holder and escrow agent are not taxpayers. Therefore, neither the specified persons, nor the beneficiary are obliged to inform the tax and other authorities.
In accordance with Art. 856 of the Civil Code, banks are responsible for the improper performance of transactions on a bank account. Therefore, according to the considered agreements, the bank must be responsible not only for non-fulfillment, but also for untimely fulfillment of the client's orders on the account.
A penalty for improper performance of obligations by the bank should be charged regardless of the payment of interest for the use of the client's funds by the bank (Article 852 of the Civil Code of the Russian Federation).
In addition, the bank will be liable in the event that it has not established that the orders were issued by an unauthorized person. In this case, the scope of his responsibility may vary depending on the fault of the bank and the client's compliance with the principles of necessary discretion and care.

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Nominal account for crediting social benefits: why is it needed? :

Three years ago, in 2014, the Government amended the Civil Code Russian Federation... The changes affected the possibility of opening a bank account together with close relatives or guardians. Since that time, such a concept as "a nominal account for the transfer of social benefits" began to operate. All interested persons can open it. Below we will try to figure out what it is, how it functions and what it is needed for.

Definition of the concept

A nominal bank account is a bank account that is drawn up by the trustee for crediting the ward's funds and further disposing of them. The peculiarity of this type of account is that the agreement for its opening may not be signed by the person whose funds are credited to it. If an account is opened for several wards at once, the bank undertakes to take into account the interests of all parties.

What is a nominal social security account? This question is of interest to many.

It can be opened by a guardian or parent for the enrollment of various social benefits, as well as benefits and alimony to persons who have not reached the age of majority or are in a state of incapacity.

In addition, a nominal account can be drawn up as a guarantee of the fulfillment of obligations prescribed in the agreement, contract, in order to comply with the terms of the loan, etc.

The registration and subsequent use of nominal accounts, as well as the activities of banking organizations associated with them, are regulated at the state level.

Account types

Nominal accounts are used not only for crediting social benefits representing convenient way managing the finances of the person under guardianship. There are other types of such accounts, such as escrow, letter of credit and pledged account.

Escrow is a nominal account that provides for the blocking of funds available on it for further transfer under an agreement between the beneficiary, the depositor and the banking organization.

Peculiarities

The features of escrow include:

1. Until all the terms of the agreement are fulfilled, neither the account holder nor the further recipient can dispose of the funds.
2. Funds are received once in the amount prescribed by the terms of the concluded agreement.
3. The bank does not charge the commission.
4. Escrow funds cannot be cashed, they cannot be used to pay for goods or services.
5. It is impossible to close a nominal account for crediting social benefits without the consent of the recipient.

Letter of credit

A letter of credit involves the transfer of funds to the recipient only after confirmation of the fulfillment of all the terms of the agreement. The money is transferred to the account by the payer, after which the bank sends it to the beneficiary when the latter has fulfilled all the prescribed obligations. Letters of credit are a good alternative to transferring funds through a safe deposit box at a bank.

Collateral account

A collateral account is opened in order to deposit money that is collateral. The debtor transfers funds to the account.

Guardian's nominal account: design rules and features of use

The collateral starts from the moment when the bank approved the opening of the account. Changes to the agreement are made only with the permission of the pledger. The bank assumes obligations to fulfill the client's orders. At the same time, you can lend to several beneficiaries at once. How to check the nominal account for crediting social payments in Sberbank, we will describe below.

Scope of use

The opening of nominal accounts has been practiced for quite some time. They began to be used when development began. cashless payments and banking systems in electronic format. Deposits were first applied in Germany almost 30 years ago. This secured transactions between the payer and the beneficiary.

Nominee accounts are now often used as deposit accounts, which made the tender guarantee optimal. They are actively used in the notary and legal spheres in order to guarantee the fulfillment of obligations under contracts between clients.

Nominal account for crediting social benefits - what is it? This is a fairly common question.

Settlements with counterparties using an escrow, letter of credit or a pledge deposit are the surest way not to lose money, avoid fraud and dishonesty. The trend in Europe is to use escrow as a tool for everyday needs. This improves the safety of shopping in stores.

For guardians

As far as guardians are concerned, opening a nominal account seems to be a good idea. Previously, the funds received by the ward came to the account of the guardian, who, in turn, could only withdraw fixed amount without the permission of the guardianship and guardianship authorities. It is rather difficult and time-consuming to obtain such permission.

The government decided to facilitate the fulfillment of duties by guardians and introduced nominal accounts, which would allow accumulating the funds received. The law provides for the possibility of withdrawing money from a nominal account for crediting social benefits in unlimited amounts, subject to reporting on the funds spent. Thus, it is possible to increase social protection wards

and to make the very sphere of guardianship more attractive.

Opening and assigning an account

With the introduction of nominal accounts, it was possible to open them only in bank credit institutions that belonged to the state. A special place among these banks was occupied by Sberbank as the main one in the Russian Federation. In the future, the opening rules have changed. It was decided that it is possible to open a nominal account for crediting social benefits (we have explained why it is needed) in any bank, only the maximum amount of savings was limited.

The deposits of the population are under the protection of the state. The insurance fund in the event of bank bankruptcy ensures the return of funds to depositors. The refund amount should not exceed 1.4 million rubles. If the amount of the deposit was more, only the established limit is compensated. For this reason, the maximum possible amount of funds for nominal account is also equal to this value. Funds in excess of this amount must be directed to an account with another banking organization... This guarantees a full refund of funds to the ward in case the bank declares itself bankrupt.