2. Banks shall be required to classify loans they have made and other assets in accordance with the nature and scale of their operations in order to ensure a proper level of control over and reliability of their business activity, separating out doubtful and bad debts and creating provisions (reserves) against them following the procedure and under the conditions established by the authorized agency in accordance with the legislation of the Republic of Kazakhstan.
Article 44. Inspection (Examination) of the Activities of Banks
1. The activities of banks shall be inspected by the authorized agency, independently or with the participation of other organizations.
In performing an inspection of the activities of banks the authorized agency shall have the right to examine the activities of banks’ affiliates solely for the purpose of determining the degree and nature of their influence on the banks’ activities, in accordance with regulatory legal acts of the authorized agency.
2. Banks and their affiliates shall be required to assist the inspecting body in matters indicated in the authorized agency’s examination program, and also to allow the inspectors to interview any officials and employees and to grant access to any sources of information necessary for the examination.
3. Employees of the authorized agency shall be prohibited from disclosing or transmitting to third parties any information obtained in the course of inspecting the activities of banks.
4. Persons carrying out an inspection shall be liable for the disclosure of information obtained in the course of an examination of the activities of banks and falling under the definition of banking or commercial secrets.
Article 45. Recommendations for Rehabilitation of a Bank’s Financial Position
If the financial position of a bank worsens, the authorized agency shall have the right to raise before its stockholders the question of the need for the bank’s financial rehabilitation, replacement of its management, or reorganization, to include offering recommendations:
on limiting the acceptance of deposits;
on increasing authorized capital;
on terminating dividend payments and increasing provisions;
on cutting expenses by closing certain branches and representative offices and by terminating or limiting the hiring of additional employees;
on dismissing or laying off any of the bank’s officials or employees;
on suspending or limiting certain types of banking operations that carry a higher risk.
Article 46. Limited Enforcement Measures
1. In the event that the authorized agency discovers violations of prudential standards and other binding norms and limits, and violations of the authorized agency’s regulatory legal acts, and if it identifies unlawful actions or inaction of a bank’s officials and employees that could jeopardize its financial security and stability and the interests of its depositors, customers, and correspondents, the authorized agency shall have the right to apply one of the following limited enforcement measures against the bank:
a) demanding a letter of commitment;
b) drawing up a written agreement with the bank;
c) issuing a warning;
d) presenting binding written instructions.
2. A bank’s letter of commitment must contain an acknowledgment of existing deficiencies, a guarantee from the bank’s management that they will be corrected within strictly determined deadlines, and a list of planned measures.
3. A written agreement shall mean an agreement between the bank and the authorized agency regarding the need for immediate correction of deficiencies that have been identified and approval of priority measures related to this effort.
4. Written instructions from the authorized agency shall mean instructions to the bank to implement compulsory corrective measures aimed at eliminating deficiencies that have been identified within an established time period.
Appeal of written instructions of the authorized agency in court shall not constitute grounds for suspension of their execution.
5. A bank shall be required to notify the authorized agency when it has complied with a letter of commitment, a written agreement, or written instructions by the deadline stated in the given document.
6. A written warning shall mean notice by the authorized agency that sanctions provided for under Article 47 of this Law may be applied against the bank if the existing deficiencies are not corrected by the authorized agency’s deadline.
7. The procedure for the application of limited enforcement measures shall be established by regulatory legal acts of the authorized agency.
8. The measures set forth in this article may also be applied to affiliates of a bank if the authorized agency determines that violations or unlawful actions or inaction of the given persons, their officials, or employees have resulted in a worsening of the bank’s financial condition.
Article 47. Sanctions
1. The authorized agency shall have the right to apply sanctions against a bank regardless of whether enforcement measures had been taken against it at an earlier date.
2. The authorized agency shall have the right to implement the following measures as sanctions:
a) imposing and collecting a fine on grounds established by legislative acts of the Republic of Kazakhstan;
b) suspending or revoking licenses for all or certain banking operations on the grounds established under Article 48 of this Law;
c) temporarily closing the bank on the grounds and according to the procedure established under Articles 62–67 of this Law;
d) revoking the permit to open the bank on the grounds provided for under Article 49 of this law.
e) in the event that a bank actually has a lack of capital and given the grounds set forth in subitem d), item 1, Article 48 of this Law, adopting a decision, with the approval of the government of the Republic of Kazakhstan, on the compulsory purchase of the bank’s stocks (stockholders’ interest) at a price set by the authorized agency on the basis of the amount of the bank’s actual capital as of the date of the authorized agency’s decision on the compulsory purchase of stocks, on the condition of their mandatory subsequent sale without delay to a new investor at the acquisition price, coupled with simultaneous concession (transfer) of all rights and obligations of the bank and its stockholders;
f) relieving the persons indicated in Article 20 of this Law of their official duties until examination of this issue by the appropriate body of the bank, on the basis of information sufficient to recognize the actions of this executive officer (these executive officers) of the bank as being inconsistent with the requirements of current legislation;
g) demanding that the organization providing the mandatory group guarantee (insurance) of deposits remove the bank from the mandatory group guarantee (insurance) system;
h) in the event of a decline in the values of the capital adequacy ratios of a bank and (or) banking group to a level that is less than 50 percent of the standards established by the requirements of regulatory legal acts of the authorized agency, the bank must be converted into a credit union following the procedure established under Article 60 of this Law and regulatory legal acts of the authorized agency. In the event that the bank waives the right set forth in the first paragraph of this subitem, or in the event of a refusal to grant permission to convert the bank into a credit union on grounds referred to in Article 61 of this Law, the authorized agency shall have the right to decide to conclude an agreement with the bank’s stockholders to place the bank’s stocks under the fiduciary management of the authorized agency, with the subsequent alienation of the bank’s stocks in accordance with item 3, Article 47-1 of this Law to a new investor (investors) on the condition that the new investor (investors) comply with the requirements of this Law.
In the event that the stockholders refuse to place stocks under fiduciary management, the authorized agency shall have the right to file a request with the courts calling for compulsory conclusion of an agreement.
3. In the event that the authorized agency applies sanctions provided for under subitem f) of item 2 of this article, decisions to dismiss employees permanently relieved from their duties shall be made by the bodies that appointed or elected them to the relevant positions.
4. Omitted.
5. A decision to revoke a bank’s banking license (licenses) shall come into force on the day of its adoption.
6. After revocation of a bank’s banking license (licenses), the authorized agency shall appoint an interim administration (interim administrator) for the bank, to which (to whom) the powers of all of its administrative bodies shall be transferred.
The powers of the bank’s previous administrative bodies shall be suspended.
7. Within 10 business days of the revocation of banking licenses, the authorized agency shall petition the court for compulsory termination of the operation (liquidation) of the bank following the procedure established by legislation.
Information on the decision to revoke a license shall be published by the authorized agency in two periodicals that are distributed throughout the entire territory of the Republic of Kazakhstan.
8. Only the stockholders of a bank shall have the right to appeal, in its name, the decision to revoke its banking licenses. This decision may be appealed in court within 10 days.
Article 47-1. Compulsory Measures Taken Against Affiliates of Banks
1. The authorized agency shall have the right to take compulsory measures against principal partners of a bank and against bank holding companies in the following cases:
the authorized agency’s consent to acquire the status of a principal partner and a bank holding company was not obtained;
circumstances referred to in item 5, Article 17-1 of this Law arise after acquisition of the status of a principal partner and a bank holding company;
written instructions of the authorized agency in accordance with Article 46 of this Law are not carried out.
The authorized agency shall also have the right to apply compulsory measures against bank holding companies for their action or inaction that has led to a failure to meet the requirements of item 5, Article 42 of this Law.
2. Should the cases referred to in item 1 of this article occur, the authorized agency shall have the right:
to require a principal partner to reduce the share of his direct or indirect interest in the bank to less than 10 percent of the voting stock or to decline to participate directly or indirectly in the management of the bank’s activities, including the waiving of voting rights;
to require a bank holding company to reduce the share of its direct or indirect interest in the bank to less than 25 percent of the voting stock or to decline to participate directly or indirectly in the management of the bank’s activities, including the waiving of voting rights, and to suspend the performance of operations between it and the bank (direct and indirect) that expose the bank to risk;
to require that the bank, with respect to an organization of which the bank or bank holding company is a partner, suspend the performance of operations between it and the bank (direct and indirect) that expose the bank to risk.
3. In the event that a principal partner of a bank or a bank holding company fails to meet the requirements provided for under item 2 of this article, as well as item 6, Article 57 of this Law, within the deadline established by the authorized agency, the authorized agency shall have the right to decide to conclude an agreement with the bank’s stockholders to place the stocks of the principal partner and (or) bank holding company under the fiduciary management of the authorized agency for a period of up to three months, with the authorized agency’s right as fiduciary to participate in the bank’s management, and when the grounds for placement under fiduciary management are eliminated, to effect the alienation of the stocks of the given persons through the sale of these stocks in the organized securities market, and proceeds from the stock sale shall be transferred to those persons whose stocks were placed under the fiduciary management of the authorized agency.
In the event that the stockholders refuse to place stocks under fiduciary management, the authorized agency shall have the right to file a request with the courts calling for compulsory conclusion of an agreement.
4. The procedure for the application of compulsory measures shall be determined by regulatory legal acts of the authorized agency.
Article 48. Grounds for Suspending or Revoking Licenses for All or Certain
Banking Operations
1. Licenses for all or certain banking operations shall be suspended or revoked on any of the following grounds:
a) failure to satisfy the requirements of Article 20; subitem b), item 1, Article 22; and items 2 and 6, Article 26 of this Law in the course of a bank’s operation;
b) performance of banking operations with systematic violations (occurring three or more times over the course of 12 successive calendar months) of the rules of the current legislation;
c) systematic (three or more times over the course of 12 successive calendar months) unsatisfactory fulfillment of contractual obligations involving payment and transfer operations;
d) systematic (three or more times over the course of 12 successive calendar months) violation of prudential standards and (or) other binding norms and limits established by the authorized agency;
e) failure to comply with the obligation established under Article 32 of this Law to disclose the general conditions for the performance of banking operations;
f) violation of the prohibition established under Article 40 of this Law against granting favorable terms to bank insiders;
g) failure to present reports and information to the authorized agency and (or) the National Bank, or presentation of reports and information known to be incorrect;
h) systematic (three or more times over the course of 12 successive calendar months) violation of regulatory legal acts or failure to carry out written instructions of the authorized agency or the National Bank;
i) performance of activities prohibited and restricted for banks in accordance with the conditions of Article 8 of this Law;
j) a bank’s performance of operations beyond its scope of authority as established by this Law, by the bank’s charter, and by the banking license (licenses);
j-1) failure by a bank or institution performing certain types of banking operations to do business in accordance with a license that has been issued for 12 successive calendar months from the date the license is issued;
k) a adoption of a court decision terminating the bank’s activity;
k-1) a bank’s decision to voluntarily terminate its activity through reorganization or liquidation.
l) failure to submit information about a bank’s affiliates or the submission of incorrect information about affiliates, as well as other information required by the authorized agency, which served to hinder the authorized agency’s supervision of banking, including on a consolidated basis;
m) repeated (two or more times in the course of an inspection) interference by a bank in the performance of an inspection, making it impossible to complete the inspection within the established time frame;
n) deliberate failure by a bank to remedy violations referred to in an audit report by an auditing firm, within the time limits referred to in item 6, Article 57 of this Law.
1-1. A license to accept deposits and to open and maintain bank accounts for natural persons shall be revoked if a bank is not a participant in the mandatory group guarantee (insurance) system for personal deposits.
2. The National Bank or the authorized agency shall suspend or revoke licenses for all or certain banking operations depending on the nature of the violation.
Article 48-1. Transfer of a Bank’s Documents and Property
1. A bank that has had its licenses to perform all banking operations revoked shall not have the right to engage in banking or other activity, and it shall be required to cease all operations with existing bank accounts except in respect to current expenses for the bank’s maintenance and the posting of funds received by the bank.
2. The procedure for the bank’s operation and for the appointment of its interim administration (interim administrator) and the powers of the interim administration (interim administrator) shall be specified by regulatory legal acts of the authorized agency.
3. The interim administration (interim administrator) of the bank shall conduct its (his) activities until such time as the authorized agency appoints a liquidation commission for the bank.
The authorized agency shall monitor the activities of the bank’s interim administration (interim administrator) until the appointment of a liquidation commission.
4. The report of the interim administration (interim administrator) of the bank shall be presented to the authorized agency and to the court that made the decision to liquidate the bank.
5. Omitted.
6. The interim administration (interim administrator) of the bank shall relinquish its (his) powers and transfer the bank’s documents and property to the chairman of the bank’s liquidation commission within no more than 10 days.
7. Transfer of the bank’s documents and property from the interim administration (interim administrator) to the chairman of the liquidation commission shall be documented by a certificate drawn up in four copies and approved by the authorized agency. One copy of the approved certificate shall be forwarded to the court for inclusion in the case file.
8. During the time of its (his) operation the bank’s interim administration (interim administrator) shall not have the right to conduct expenditure operations except as provided for in item 1 of this article, or to change the conditions of agreements concluded earlier by the bank.
9. The National Bank shall be prohibited from funding expenses involved in the involuntary reorganization and liquidation of banks, except in respect to labor compensation for employees of the National Bank who are serving as part of the bank’s interim administration (the interim administrator) and liquidation commission, and also to cover expenses related to the publication of information in official publications of the Republic of Kazakhstan Ministry of Justice on the court decision regarding involuntary liquidation of the bank in cases in which the bank has no property or if its value is insufficient to cover said costs..
Article 49. Grounds and Procedure for Revoking a Permit to Open a Bank
1. The authorized agency shall have the right to revoke a permit to open a bank in the event that:
a) a bank adopts a decision voluntarily to terminate its operation through reorganization or liquidation;
b) a court issues a decision terminating the bank’s operation;
c) violations set forth in item 2 of this article are discovered in the operation of a juridical person registered as a bank.
2. A permit to open a bank issued to a juridical person shall be revoked by the authorized agency on any of the following grounds:
a) it is determined within one year of the day of the juridical person’s state registration as a bank that information on the basis of which the permit had been issued was not truthful;
a-1) violation of the deadlines provided for under Article 25 of this Law;
b) failure to obtain a banking license within one year of the day of the juridical person’s state registration as a bank;
c) failure to pay in authorized capital within one year of the juridical person’s state registration as a bank;
d) violation of the conditions of operation provided for by the banking legislation for a juridical person registered as a bank.
3. Omitted.
4. A decision by the authorized agency to revoke a permit to open a bank shall be grounds for reregistration or termination of the operation of the juridical person.
Article 50. Banking Secrecy
1. Banking secrecy shall cover information concerning the existence, the holders, and the numbers of the accounts of a bank’s depositors, customers, and correspondents; the balances and movement of money on these accounts and on the bank’s own accounts; the bank’s operations (with the exception of the general conditions for banking operations); as well as information on the existence, holders, nature, and value of property of customers held in the bank’s safe deposit boxes, safes, and premises.
Information on credits issued by a bank undergoing liquidation shall not be classified as bank secrets.
2. Banks shall guarantee the secrecy of operations and deposits of their depositors, customers, and correspondents, as well as the secrecy of property stored in the safe deposit boxes, safes, and premises of banks.
3. Bank officials and employees and other persons who have gained access to information falling under the definition of bank secrets in the course of their official duties shall bear criminal liability for its disclosure, except in cases provided for under items 4–8 of this article.
4. A bank secret may be disclosed only to the account holder (property owner), or to any third party on the basis of the written consent of the account holder (property owner), given by him when he is physically present at the bank, and also to persons indicated in items of 5–8 this article on the grounds and within the limits provided for under this article.
Mandatory notification of tax authorities by banks regarding the opening of bank accounts for a juridical person or an unincorporated natural person engaged in entrepreneurial activity shall not be considered disclosure of a banking secret, nor shall the presentation of information about balances of funds on bank accounts of natural persons by the liquidation commission of a bank undergoing involuntary liquidation to an organization responsible for the group guarantee (insurance) of deposits and agent banks for the implementation of measures related to the return of funds to depositors.
5. Information on the existence and numbers of accounts shall be issued to a bank in relation to which the holder of an account (accounts) is a borrower, a guarantor, a surety, or a mortgagor, on the basis of a written request signed by the chairman of the bank’s supervisory board or a person acting in his stead, and on the condition that a document confirming receipt of credit is presented.
6. Information on the existence and numbers of a juridical person’s bank accounts, as well as the current accounts of an unincorporated natural person engaged in entrepreneurial activity, and on balances and movement of funds on these accounts shall be released to:
a) investigative and preliminary inquiry authorities: in relation to criminal cases being handled by them, with the approval of a prosecutor;
b) courts: in relation to cases being heard by them on the basis of a court ruling;
c) a prosecutor: on the basis of an order calling for an examination, within the scope of his authority, in relation to cases being handled by him;
d) customs authorities: in relation to export and (or) import operations of customers, with the approval of a prosecutor;
e) tax authorities: in relation to matters associated with taxation of a person being audited, with the approval of a prosecutor;
e-1) enforcement authorities: in relation to enforcement cases being handled by them, on the basis of a written request signed by the senior manager or enforcement officer, certified by the seal of an enforcement authority and approved by a prosecutor;
7. Information on the existence and numbers of a natural person’s bank accounts and on balances and movement of funds on these accounts, and information available on the nature and value of his property stored in a bank’s safe deposit boxes, safes, and premises shall be released to:
a) representatives of the natural person: on the basis of a notarized power of attorney;
b) investigative and preliminary inquiry authorities: in relation to criminal cases being handled by them, in cases in which money and other property owned by a natural person and held on accounts or for safekeeping at a bank may be subject to seizure, collection action, or confiscation on the basis of a written request signed by the senior manager or investigator, and certified by the seal of an investigative or preliminary inquiry authority and approved by a prosecutor;
c) courts: in relation to cases being heard by them on the basis of a court ruling, order, decision, or sentence in cases in which money and other property owned by a natural person and held on accounts or for safekeeping at a bank may be subject to seizure, collection action, or confiscation;
d) a prosecutor: on the basis of an order calling for an examination, within the scope of his authority, in relation to cases being handled by him;
e) customs authorities in relation to export and (or) import operations of customers;
f) tax authorities: in relation to matters associated with taxation of a person being audited;
7-1. Information on the movement of funds on bank accounts referred to under items 6 and 7 of this article shall be furnished in the form of a statement from a customer’s personal account regarding the movement of funds on the customer’s bank accounts. The information that a statement from a customer’s personal account regarding the movement of funds on the customer’s bank accounts must contain shall be determined by a regulatory legal act of the National Bank of the Republic of Kazakhstan.
8. Information on existence and numbers of a natural person’s bank accounts and on balances of funds on them, as well as information available on the existence, nature, and value of his property held for safekeeping in a bank’s safe deposit boxes, safes, and premises, in the event of the holder’s death shall be released to:
a) persons indicated by the account holder (property owner) in his will;
b) courts and notaries public: in relation to inheritance cases being handled by them, on the basis of a written request from a notary public, certified by his seal. A copy of the account holder’s death certificate must be attached to the notary public’s written request.
c) foreign consular institutions: in relation to inheritance cases being handled by them.
9. Information containing a banking secret shall be furnished to tax authorities in relation to matters associated with taxation, in accordance with the tax legislation of the Republic of Kazakhstan.
(see previous version)
Article 51. Seizure and Recovery of Funds and Property Held in a Bank
1. Funds and other property of a juridical or natural person held in a bank may be subject to seizure only on the basis of orders from investigative and preliminary inquiry authorities and orders of enforcement authorities that have been approved by a prosecutor, as well as court orders, decisions, sentences, or rulings. When a seizure is carried out to satisfy claims, the amount of money seized must not exceed the amount of the claim plus the stamp duty and expenses associated with the execution of court decisions, sentences, rulings, and orders.
All expenditure operations on a juridical person’s bank accounts (with the exception of correspondent accounts) in those cases established by legislative acts of the Republic of Kazakhstan may be suspended by a decision of tax and (or) customs authorities signed by the senior manager and certified by the seal of the tax and (or) customs authorities, which has been approved by a prosecutor, and recovery action may be taken only on the grounds provided for by legislative acts of the Republic of Kazakhstan.
2. Money and other property of a juridical or natural person held in a bank, with the exception of pension assets of pension savings funds, may be confiscated only on the basis of a court decision (sentence) that has entered into legal force.
Article 52. The Group Deposit Guarantee (Insurance) System
In order to protect the interest of banks’ depositors an organization shall be established to provide for the mandatory group guarantee (insurance) of deposits.
The authorized agency shall determine the legal status and the procedure for the establishment, regulation, and termination of the operation of the mandatory group deposit guarantee (insurance) organization.
The procedure for the mandatory group guarantee (insurance) of deposits, as well as the relationship between the mandatory group deposit guarantee (insurance) organization and banks shall be established by regulatory legal acts of the authorized agency.
Banks shall participate in the mandatory group deposit guarantee (insurance) system by making mandatory contributions in the amount and following the procedure established by the authorized agency.
Chapter 5. Accounting and Reporting
|
Из за большого объема этот материал размещен на нескольких страницах:
1 2 3 4 5 |
