Concept of Credit Institution in the Modern Foreign Banking Law: Traditions and New Tendencies

Abstract

Vishnevskij Alexander - Professor, Department of Entrepreneurial Law, National Research University Higher School of Economics. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: aavishnevsky@gmail.com.

The article analyzes the tendencies of the last decade as to approaches to the status of credit institutionsin the banking law of foreign countries. The status of credit institutions is being studied in thefollowing aspects: approaches to the concept of a credit institution — i.e. institutional and functionalfunctioning in different legal systems — the continental one, including EU banking law, and Anglo-Saxonsystem; legal capacity of a credit institution. The examples shown confirm the thesis on a special legalcapacity 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 specializationof credit institutions — the division of the regular banking activity and risky operations among variouslegal 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 ofstandard requirements in Germany); implementation of public law functions supporting the conclusionon the changed nature of banking. Credit institution serves as an entrepreneur interested in earningprofit and the institution performing public functions in the banking system. Credit institutions performthese functions in addition to earning profit — however performing public law functions is considered asthe function imposed but immanent for banking as entrepreneurship of a credit institution is carried outin the financial area which serves to perform public functions by nature in modern society.