Concept of Credit Institution in the Modern Foreign Banking Law: Traditions and New Tendencies
Abstract
The article analyzes the tendencies of the last decade as to approaches to the status of credit institutions in the banking law of foreign countries. The status of credit institutions is being studied in the following aspects: approaches to the concept of a credit institution — i.e. institutional and functional functioning in different legal systems — the continental one, including EU banking law/, and Anglo-Saxon system; legal capacity of a credit institution. The examples shown confirm the thesis on a special legal capacity of a credit institution and legal patterns ensuring this special legal capacity of a credit institution. The latest post-crisis legislation is analyzed as the one aimed at involuntary restricted specialization of credit institutions — the division of the regular banking activity and risky operations among various legal persons subject to banking regulation and supervision; observing professional standards, i.e. the best practice as to the cooperation with the clients of different legal nature in various legal systems (presupposed terms and conditions between the bank and the client in the UK, judicial supervision of standard requirements in Germany); implementation of public law functions supporting the conclusion on the changed nature of banking. Credit institution serves as an entrepreneur interested in earning profit and the institution performing public functions in the banking system. Credit institutions perform these functions in addition to earning profit — however performing public law functions is considered as the function imposed but immanent for banking as entrepreneurship of a credit institution is carried out in the financial area which serves to perform public functions by nature in modern society.
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