LEGISLATIVE COLLISIONS OF LEGAL REGULATION OF ADMINISTRATIVE ENFORCEMENT WITHIN ACTIVITIES OF NATIONAL BANK OF UKRAINE AND METHODS OF THEIR ELIMINATION

• Main Authors: Yuriy Pyvovar, Mykola Pashynskyi
• Format: Article
• Language: English
• Published: National Aviation University 2016-11-01
• Series: Vìsnik Nacìonalʹnogo Avìacìjnogo Unìversitetu
• Subjects: administrative enforcement; bank liquidation; bank regulation; constitutional validity; means of control and supervision; national bank
• Online Access: http://jrnl.nau.edu.ua/index.php/visnik/article/view/10927

<p><strong><em>Purpose: </em></strong><em>Determining </em><em>legislative conflicts and gaps related to imposing sanctions by the National Bank of Ukraine to banks as well as developing the grounded offers on how to eliminate the respective legal defects.</em><em> </em><strong><em>Results:</em></strong><em> Comparing the aim of banking regulation assigned to the NBU and the aim of regulation in other areas of the state economy (e.g., financial, environmental protection and safety and etc.) allows assuming that the state has vested the NBU with a ‘superfunction’ that would be more appropriate for the Verkhovna Rada (Parliament) of Ukraine as the single state legislative authority authorized to create the system of the rules of law in different areas of the social life of the country (including the banking sector). Based on the general legal doctrine, we consider that the provision of the Law of Ukraine on the National Bank of Ukraine stipulating the primary aim of banking regulation, especially the development of the system of rules, should be amended by replacing the term ‘banking regulation’ by the category ‘banking legal regulation’ in particular. Therewith, it should be defined that the latter aims at harmonizing social relations in the banking sector. We also thing that it is reasonable to – first and foremost – define the term ‘banking legal regulation’ and its meaning in the basic sectoral legislative act – the Law of Ukraine on Banks and Banking. In this article accentuated that the most controversial direction of banking regulation is ‘the responsibility for the violation of banking laws.’ Having analysed the effective laws, we can state that today the NBU covers the powers at three levels with different organization: first, making a decision on bank liquidation; second, implementing this decision (particularly by registering the bank liquidation in the Unified State Registry of Legal Entities and Individual Entrepreneurs); third, controlling and supervising the process of the implementation of the bank liquidation decision. Furthermore is concluded that the legal status of the NBU in the banking sector (related to banking activity) has peculiarities, which – in total – consecutively define this state authority as: 1) a regulator; 2) a controlling and supervising body; 3) a body with judicial powers.</em><em> </em><strong><em>Discussion:</em></strong><em> </em><em>Comparative legal research contributed to the conclusion that the legal model that is formulated by legislative acts and is a legal basis for the banking sector conflicts with the Constitution of Ukraine. To solve the detected legal conflict is proposed to implement two main methods.</em></p>