Self-regulatory organization of professional participants in the securities market.

MODERN PROBLEMS OF FINANCE AND CREDIT

Bulletin of Omsk University. Series "Economics". 2010. No. 2. P. 142-147.

UDC 336.762: 336.761.6

SELF-REGULATORY ORGANIZATIONS ON THE RUSSIAN SECURITIES MARKET

RF SECURITY MARKET: SELF-CONTROLLED BODIES

A.V. Menshenina, E.V. Lyuts A.V. Menshenina, E.V. Lyuts

Omsk State University named after. F.M. Dostoevsky

Regulation of the securities market is an important factor determining the level of market development. There are two main models of market regulation in the world, differing in the role of self-regulatory organizations. This article describes the functioning of self-regulatory organizations in the Russian securities market within the framework of the self-regulation subsystem, as well as the problems and prospects for the development of this institution.

The article deals with security market regulation, a key factor to determine market development level. There are two major regulation patterns which differ in the role of the self-controlled bodies. The article describes the self-controlled agencies operating at the RF security market within the self-regulation subsystem and issues and prospects of these ones.

Key words: self-regulation, self-regulatory organizations of professional participants in the securities market, control, voluntary and compulsory membership, performance standards.

Key words: self-regulation, self-controlled agencies of security market traders, control, voluntary and obligatory membership, operation standards.

The concept of “self-regulation”, as well as the concept of “self-regulatory organization”, is new to Russian economic thought, since in the era of the dominance of the socialist method of economic management, the need for regulators other than the state did not exist. During the period of formation of market relations, the question arose of finding an alternative subject of regulation. The reasons for this are, firstly, the imperfection of government structures, their cumbersomeness and excessive bureaucratization, as well as problems of corruption, and secondly, the diversity of forms of ownership and types of entrepreneurial activity that arose with the transition to a market economy; thirdly, the state structure and size of the Russian Federation, which complicate comprehensive and all-encompassing regulation. In addition, the traditions of world markets and the processes of globalization in financial markets are also important. Self-regulation has become an alternative and complementary mechanism of state regulation.

It should be noted that in other countries, self-regulation in the securities market preceded state regulation. The prototype of self-regulatory organizations (hereinafter referred to as SROs) were stock exchanges, which carried out regulatory actions by establishing conditions for participation in exchange trading and rules for transactions with securities on the exchange. Self-regulation is considered to be the most developed in the USA. In this country, there are two types of self-regulatory organizations: NASD (National Association of Stock Dealers) and infrastructure organizations NYSE, NASDAQ, DTC, NSCC, oCC and others. It is noteworthy that the NASD is, in principle, the first self-regulatory organization in the stock market in the world, while membership in this organization has now become a mandatory condition for working in the American securities market.

Historically, two models of stock market regulation have developed depending on the participation of self-regulatory organizations in it. The first model implies that the SRO has a wide range of powers, while

The state regulator is primarily assigned supervisory functions. Examples of such a model are the USA, Canada, Japan, and until recently the UK. In the second model, the role of the main regulator is played by the state, and SROs are either absent altogether or have minor functions transferred to them. Such a regulatory system is emerging in France, Germany, Italy, Austria and a number of other countries. Differences in models of market regulation are determined by the role of the state in the economy, as well as the peculiarities of the emergence of stock exchanges (as public institutions, as private organizations).

In our country, self-regulatory organizations appeared relatively recently; one of the first self-regulatory organizations on the Russian securities market were two federations of stock exchanges, which later transformed into the Union of Stock Exchanges (1992-1994), the Professional Association of Stock Market Participants - PAUFOR (late 1994 .), Council of the largest registrars and depositories - SKRO (1992-1994).

Self-regulation can be considered as a subsystem in the stock market regulation system, in which individual elements and functions are distinguished.

The subject of self-regulation on the Russian securities market are self-regulatory organizations, which in federal legislation are defined as voluntary associations of professional participants in the securities market, operating in accordance with federal law and operating on the principles non-profit organization.

Currently, in Russia, the Federal Service for Financial Markets, namely it controls SROs, issues and revokes their permits to carry out activities, has registered six self-regulatory organizations:

1. National Association of Stock Market Participants (NAUFOR). Unites about 400 companies of brokers, dealers, securities managers, and depositories.

2. Non-profit partnership “National League of Managers” (NP “NLU”). Consists of approximately 70 investment fund management companies.

3. “National Stock Association (self-regulatory non-profit organization)” (NFA). Includes about 250 organizations engaged in brokerage, dealer,

positive activity and securities management activities, most of which are credit institutions.

4. Professional Association of Registrars, Transfer Agents and Depositories (PARTAD). Unites almost 90 companies of registrars, depositories, clearing organizations and special depositories.

5. Non-profit partnership of professional participants in the stock market of the Ural region (PUFRUR). Includes professional participants various types, territorially unites about 20 organizations.

6. Self-regulatory organization Non-profit partnership “National Association of Non-State Pension Funds” (NP “NAPF”). Consists of about 110 members - non-state pension funds, management companies and specialized depositories.

The objects of self-regulation include professional participants in the securities market, their activities in the stock market (professional investment and speculative), as well as operations performed by them (intermediary, investment, speculative, collateral, trust).

The principles on which Russian SROs currently operate in the securities market include:

Voluntary in nature: joining an SRO is not a prerequisite for implementation professional activity;

Legislative regulation: the main provisions relating to self-regulatory organizations, their rights and obligations, as well as the requirements for them, are prescribed in federal legislation and other by-laws;

Non-commercial nature: SROs pursue goals other than making a profit and the laws relating to non-profit organizations are applicable to it;

The right to establish rules and standards for its members: members of a self-regulatory organization de facto act in accordance with norms, which, as a rule, are more stringent than the current legislation and complement it;

Application of control: SROs in the securities market have the right to exercise control over the activities of their members and apply sanctions to them in case of non-compliance with the laws or regulations of the SRO itself.

In the process of carrying out their activities, SROs perform the following functions:

Control - exercising control powers and imposing sanctions and taking measures of influence against its members who violate the legislation of the Russian Federation, as well as the charter and internal documents of the SRO;

Regulatory - establishing standards and rules for carrying out professional activities in the securities market and transactions with securities for its members; sending proposals to improve legislation to the FFMS Russian Federation about the securities market;

Personnel - development in accordance with qualification requirements FFMS training programs and plans, training of managers and employees of organizations carrying out professional activities in the securities market, determining the qualifications of these persons and issuing them qualification certificates;

Authorizing - issuing an application to obtain licenses from licensing authorities for the right to carry out professional activities in the securities market.

The list of methods used by Russian SROs in their activities includes:

Standardization - SROs develop performance standards for their members, which are mandatory for compliance by professional participants of the organization;

Certification of specialists financial market- since the end of 2006, SROs, as accredited organizations, have the right to carry out certification, as well as preparation for passing the exam;

Investor insurance - implementation this method is provided for under federal legislation and is called a compensation fund, but currently these funds do not operate on the securities market. The compensation fund is created for the purpose of compensating losses to individuals who are not qualified investors caused to them as a result of the insolvency (bankruptcy) of professional participants in the securities market and management companies;

Control - the implementation of this method involves monitoring the compliance of professional participants with current legislation, conducting inspections, monitoring and analyzing the activities of a professional participant when joining an SRO, as well as auditing and rating competitions.

troll for financial condition members of the SRO, carried out as a function of analyzing the activities of members of the organization;

Informing investors - disclosing information on SRO websites on the Internet, speaking in the media, holding conferences and round tables with the participation of the population;

Consulting - clarification of legal provisions to professional participants and assistance in resolving controversial issues.

The process of self-regulation can be represented as a sequence of stages:

1. Establishment of internal rules and standards taking into account the requirements of legislation and customs that have developed in the securities market.

2. Acceptance of members who agree with the rules of the SRO and meet the requirements for them.

3. Control over SRO participants and application of established sanctions to them in case of violation of legislation or rules and internal documents of the organization.

Legislative basis The functioning of the SRO became Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”. In development and addition of this law, other laws and regulations were adopted, the hierarchy of which can be presented as follows:

1st level: The Federal Law “On the Securities Market” defines and regulates the procedure for creating SROs, their rights and requirements for them;

Level 2: federal laws covering certain aspects of the functioning of SROs in the securities market: law of March 5

1999 No. 46-FZ “On the protection of the rights and legitimate interests of investors in the securities market” (on providing information to investors and the creation of a compensation fund) and the law of November 29, 2001 No. 156-FZ “On investment funds” (on the creation SRO management companies, their rights and requirements for them);

3rd level: By-laws of the regulatory body, which is currently the Federal Service for Financial Markets. In furtherance of the law on the securities market, Resolution No. 24 of the Federal Securities Commission dated July 1, 1997 “On approval of the Regulations” was adopted

on self-regulatory organizations of professional participants in the securities market", regulating the basic rights and obligations of SROs, their organizational structure, rights and obligations of members of the organization. Others

by-laws of the Federal Service assign to SROs the right to obtain the status of an accredited organization that carries out certification of financial market specialists, the rights and responsibilities of SROs during joint inspections of professional participants in the securities market, the SROs are assigned the function of receiving reports, they also take part in the licensing of professional participants the securities market by submitting applications, which speeds up this procedure, etc.;

4th level: Internal regulations and provisions of SROs, which disclose both the issues of their functioning in the status of a legal entity and the procedure for relationships with their members.

As for setting the goals and objectives of SROs, the legislation does not contain the concept of “self-regulatory objectives” at all, but a large number of goals are identified. In our opinion, we can highlight the main goal of the SRO - to provide conditions for professional activity in the securities market. Based on this, the tasks of the SRO include:

1. Development and improvement of the system of functional regulation of the securities market.

2. Establishment of rules and standards for conducting transactions with securities, ensuring effective activity in the securities market.

3. Monitoring and supervising the activities of professional participants in the securities market.

4. Protection of the interests of security owners and clients of professional securities market participants who are members of the SRO.

5. Raising standards of professional activity in the securities market, including standards professional ethics On him .

Self-regulation contains certain contradictions related to the fact that, on the one hand, it is still regulation, implying control and a certain management “from above”, but, on the other hand, the subjects of this management are the professional market participants themselves, or rather SRO. This contradiction is a prerequisite for the emergence of discussions on issues related to the legal status and fundamentals of the functioning of SROs on the securities market in Russia. Over the almost fifteen-year history of the existence of this institute,

One of the main issues concerning the functioning of SROs in the securities market is the mandatory requirement of membership in them. Our country has experience as mandatory membership in SROs on the stock market (from 1998 to

2000) and voluntary.

Opponents of mandatory membership in SROs appeal to the fact that voluntariness is the key meaning of self-regulation (which seems quite controversial, since the key to self-regulation is the streamlining of the activities of professional participants on the basis of special standards and rules that complement and develop legislative norms). Proponents of voluntary membership fear that SROs will become an additional barrier to professional activity in the market: “membership in self-regulatory organizations... should not be mandatory, otherwise participation in self-regulatory organizations turns into admission to professional activity.”

Also controversial is the largely legal question of whether there can be a legal entity in which participation is mandatory.

In our opinion, a transition to compulsory SRO membership is currently necessary. Arguments in support of this opinion are:

1. Only subject to mandatory membership in an SRO can a mechanism such as compensation funds be implemented.

2. Mandatory membership in an SRO will generally reduce the costs of maintaining associations, since currently, for professional market participants, a fairly weighty argument against membership in an SRO is the amount of contributions, which exceeds 100,000 rubles per year.

3. Mandatory membership will make it possible in the future to transfer more control powers, including licensing, from the regulator to the SRO. According to I. Moryakov, “the principle of mandatory membership of professional participants in SROs will inevitably lead to the transfer of licensing functions from the regulator to the SRO, leaving the regulator with exclusive supervisory functions.”

4. Mandatory membership in an SRO will not only reduce the costs of professional participants joining an SRO, based on data

principle, but also by transferring part of the powers of the regulator will reduce the bureaucratic apparatus and state expenses for regulating the stock market.

5. Mandatory membership will lead to the fact that all professional participants will be brought to general quality standards, by the way, higher than the state ones, which will increase the level of services they provide in general.

6. It is important to note that mandatory membership in an SRO is one of the conditions for the introduction of a mega-regulator on the Russian financial market, since this mechanism implies the transfer of part of the powers to regulate the market. At the same time, without compulsory membership, a situation will arise in which some of the professional participants - members of the SRO will be regulated, and the other part of the professional participants who are not members of the SRO will actually fall out of the regulatory system.

7. One can also note the fact that in other types of activities, such as the appraisal business, arbitration management and auditing activities, mandatory membership in an SRO is already an established fact and represents an operating system.

8. The experience of developed countries has shown that this principle of functioning of SROs in the securities market is effective and viable.

9. If admission to the stock market is carried out by SROs, then this will become a more reliable mechanism than state licensing. Firstly, because it is unprofitable for SROs to set too high barriers to entry into the market, since this will limit the number of their members. Secondly, SROs cannot reduce the requirements for professional participants, since the low level of quality of services provided or the dishonesty of SRO members can affect the reputation of the organization itself, which will lead to a decrease in trust on the part of the state regulator and, as a result, the revocation of permission to operate SRO.

Another issue under discussion is the multiplicity of SROs. Currently, there are six SROs of professional participants operating on the Russian stock market, while one of the organizations operates only nominally (PUFRUR), and the rest are monopolists in their field (PARTAD, NLU, NAPF) or compete to a limited extent (NFA and NAUFOR). Multiplicity of SROs valid

really is an important condition their functioning in the domestic securities market and must be strictly observed when introducing compulsory membership in an SRO, so that market participants have a choice of which organization to join, so that it most fully corresponds to the types of activities carried out and can represent the interests of the organization.

In particular, such a leading specialist in the field of the securities market as Professor Y. Mirkin speaks in favor of the plurality of SROs. In his opinion, “those who defend the uniqueness of self-regulatory organizations do not point out the danger of a monopoly position in the market that such a self-regulatory organization occupies; to transform the meaning of the concept “self-regulatory organization” into a formality or its opposite; to the disappearance of the very essence of self-regulation, voluntariness and initiative; on risks for the market that arise if the only self-regulatory organization pursues policies that harm the market (incorrect concepts of its development, preference of some market participants over others, establishment of monopoly high prices for SRO services, etc.).”

One of the key problems is the correlation between self-regulation and state regulation in the stock market. Despite the fact that the professional community has almost unequivocally come to the conclusion that the role of SROs should be increased and their powers expanded, in practice there are no significant changes in the position of these institutions. Eg, latest edition The regulations on SRO date back to 2002; the changes made only canceled the licensing of these organizations and did not change their functions. According to a number of economists, at present we can say that self-regulatory institutions are treated “as clubs of interests, and not as subjects of regulation.” Other authors believe that “the current SROs have turned into their own “ghosts” and really play the role of “elite associations” that stay afloat only by protecting the interests of their members.

Thus, the detachment of SROs from real regulation in the securities market and the inferiority of this subsystem due to restrictions from regulatory authorities are emphasized. We can also say that the controversial point is the completeness of the functions transferred to the state

by the local SRO regulator, this issue is not considered separately, but at the same time requires special attention, due to the fact that control is currently the main function of the SRO.

In our opinion, for more successful functioning of the institute, based on the experience of SROs abroad, as well as existing SROs in our country, it is necessary to legislate the following provisions:

Mandatory membership in SROs, and there must be a period during which professional participants will be able to choose the SROs of which they want to be members, and also provided that the principle of plurality of associations is observed;

It is necessary to transfer part of the control powers from the regulator to the SRO, which should be enshrined in federal legislation. Due to the fact that the importance of SROs will increase, in our opinion, it is advisable to increase the requirements for them, in particular, to prescribe the possibility of licensing associations and the conditions for revoking licenses, to outline the powers of the regulator to control SROs and only in exceptional cases over their members, as well as determine the main provisions relating to the creation and functioning of the compensation fund.

To summarize, we can say that the formation of the institution of self-regulation in the world dates back more than a hundred years, while in different countries the time and pace of this process differed. In some countries, self-regulation prevailed over state regulation; in others, the state exercised almost monopoly regulation of the securities market. In our country there is enough short period Over time, a legal framework for self-regulation was created, the basic rights and responsibilities of SROs and their functions were determined. Currently, issues related to the functioning of SROs cause certain discussions in scientific circles and have ambiguous interpretation.

We believe that in Russia it is necessary to create a regulatory model in which membership in SROs will become mandatory (subject to the plurality of these organizations), the function of admitting professional participants and monitoring them will be transferred to the SRO level, while the state regulator will resolve issues of regulatory support.

ensure the functioning of all participants in the securities market and exercise supervision over SROs only in exceptional cases. This model will allow for better regulation of the securities market, which, in turn, will affect the level of functioning of the market itself.

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1.3 Self-regulatory organizations of the securities market

Self-regulatory organizations are non-profit, non-governmental organizations created by professional participants of the securities market on a voluntary basis, with the aim of regulating certain aspects of the market on the basis of state guarantees of support, expressed in assigning them the state status of a self-regulatory organization.

The number and focus of self-regulatory organizations must be established by the state, since the same subject of self-regulation cannot be regulated by two or more similar bodies at once.

Objectives of the self-regulatory organization:

A. Security favorable conditions professional activities in the market.

B. Compliance with standards of professional ethics in the market.

C. Protecting the interests of professional participants before government regulators.

D. Protecting the interests of clients of professional participants.

E. Establishing rules and standards for conducting transactions with securities and monitoring their implementation.

Rights of a self-regulatory organization:

1) development of mandatory rules and standards for professional activities and market operations;

2) carrying out professional training, establishing requirements mandatory for working in a given market;

3) control over compliance by market participants with established rules and regulations;

4) information activities On the market;

5) ensuring communication and representation (protection) of the interests of participants.

Positive sides self-regulation:

1. Development of standards of behavior by professional participants of the RCB themselves, who actually represent its features.

2. Saving public funds, reducing the apparatus for managing the securities market.

3. RSB participants are more interested in normal regulation than government officials. Control of public structures is more demanding than that of officials.

4. It is easier to introduce ethical standards of behavior for professional participants of the RCB.

1.4 Management system for the securities market in Russia

The principles of regulation of the Russian securities market largely depend on the political and economic conditions existing in the country, but at the same time they must reflect the time-tested historical practice of the world securities market.

Basic principles:

I. Separation of approaches in regulating relations between the issuer and the investor, on the one hand, and relations with the participation of professional market participants, on the other. The first link regulates the relationship between the owner of the rights under the security and the person obligated under it; in the second - the relationship in which transactions are concluded and executed between the issuer and a professional participant, an investor and a professional participant, or between professional participants.

II. Selection of so-called investment securities from all types of securities, i.e. those that are mass produced, in series, and can be quickly distributed and the market for which can be quickly organized. It is precisely such securities that require careful regulation, since it is precisely with these instruments that attackers can cause great damage to market participants.

III. The widest possible use of procedures for disclosing information about all market participants - issuers, large investors and professional participants. This mechanism makes it possible for market participants to obtain information about each other to make business decisions when operating in the market.

IV. The need to ensure competition as a mechanism for objectively improving the quality of services and reducing their costs. This principle is implemented through the rejection of regulatory documents that give preferences to individual market participants. All subjects of regulation have equal rights before regulatory bodies - the regulations do not mention specific names or brand names.

V. When dividing powers between regulatory bodies, it should be assumed that rule-making and rule-enforcement should not be combined by one person.

VI. Ensuring transparency of rule-making, broad public discussion of ways to solve market problems. This principle improves the quality of rulemaking and its objectivity.

VII. Compliance with the principle of continuity Russian system regulation of the securities market, which has a certain history and traditions. One cannot fail to take into account the growing integration of the national stock market with the international one. It is ineffective to start building a new system of market regulation “from the center of the field”; it is necessary to practically take into account the experience of the world market, qualitatively process it and use successful regulatory solutions. One should not make dogmas out of this experience, because repeating the mistakes of others can slow down progress in market regulation.

VIII. Optimal distribution of functions for regulating securities between state and non-state governing bodies.

Like any management system, the management system of the RCB is built in accordance with its goals, strategy and objectives and includes 2 subsystems: control and managed, which are served by organizational, functional and technical infrastructure. The first subsystem acts as a subject, and the second – as an object of control.

The control subsystem includes:

1. State bodies and self-regulatory organizations carrying out legislative, registration, licensing and supervisory activities in the securities market.

2. Legislative infrastructure (regulatory documents applicable to the RCB, 90% of which are legislative acts).

3. Stock market ethics (business rules approved by self-regulatory organizations).

4. Traditions and customs.

The controlled and control subsystems perform the corresponding functions. The functions of the control object include:

® traffic organization financial resources;

® ensuring the quality of securities;

® market information support.

The management subject performs the following functions:

® coordination;

® regulation;

® forecasting;

® stimulation;

® organization

® control of processes occurring in the market.

The influence of the subject on the control object, i.e. the control process itself can be carried out only if certain information circulates between the control and controlled subsystems. The market management process involves receiving, transmitting, processing and using information. The solution to this problem is based on the use of modern computer technology and technology, the development of telecommunication systems serving local distribution centers. The creation of a national telecommunications system that unites regional markets will make it possible to coordinate the functioning and development of the securities market as a whole, to comply with uniform rules for conducting stock transactions, registering securities, trading them, compiling reports, and will significantly facilitate and speed up the process of transactions.

The Russian stock market has a mixed management model, since the regulating authorities are the Central Bank of the Russian Federation and non-banking government bodies headed by the Federal Financial Markets Service of Russia, on the one hand, and self-regulatory associations of professional participants of the securities market (PARTAD, NAUFOR), on the other hand. In Russia, a mixed, polycentric model of the stock market has spontaneously emerged, in which commercial banks, stock exchanges and other financial institutions are present simultaneously and with equal rights. This model differs from the American one, where there are serious restrictions on transactions with securities (in particular, for commercial banks). Not available in our country yet public organizations regulation of the RCB, but on a spontaneous basis they arise from time to time when there are some crisis situations in society, as, for example, during the period when the “MMM tickets” ceased to exist in the first half of the 1990s.

In accordance with the Federal Law “On the Securities Market,” state regulation of this market is carried out on the basis of:

A. establishing mandatory requirements to activities at the RCB:

Q issuers of securities;

Q professional participants;

Q self-regulatory organizations

B. establishing standards for issuing securities

C. state registration of issues of equity securities

D. state system control over compliance by issuers with conditions and obligations on issued securities

E. licensing the activities of professional participants in the securities market

F. prohibition and suppression of business activities on the securities market without the appropriate license

G. creating a system for protecting the rights of securities holders

H. establishing maximum volumes of securities issue by government authorities and local government

The state on the Russian securities market acts as:

ü the issuer when issuing government securities

ü investor when managing large portfolios of shares industrial enterprises

ü a professional participant when trading shares during privatization auctions

ü regulator when writing legislation and regulations

ü the supreme arbiter in disputes between market participants through the judicial system

Structure of state regulatory bodies of the Russian securities market:

I. Higher authorities state power:

1. The State Duma issues laws regulating the securities market.

2. The President issues decrees.

3. The government issues regulations, usually as a follow-up to presidential decrees.

II. State authorities regulating securities at the ministerial level:

1. The Federal Service for Financial Markets (FSFM) carries out comprehensive regulation of the corporate securities market and is the federal executive body for the securities market. It is a combination of a central body and territorial organizations covering all major regions of Russia.

Main functions of the FFMS:

Æ Ensuring the dynamic development of the securities market in accordance with the national interests of Russia;

Æ coordinates the activities of all other federal executive authorities on issues of regulation of this market;

Æ approves standards for securities issues and standards for securities prospectuses;

Æ approves the procedure for state registration of securities prospectuses, issues of securities and reports on their results;

Æ develops and approves requirements for the rules for carrying out professional activities on the securities market;

Æ establishes mandatory requirements for transactions with securities, including placement, circulation, settlement and depository operations, and the procedure for maintaining a register;

Æ establishes the procedure, carries out licensing of professional activities at the Republican Marketplace and maintains a register of these licenses;

Æ establishes procedures, carries out licensing and maintains a register of self-regulatory organizations of professional participants of the securities market;

Æ determines the standards of activity of investment, non-state pension, insurance funds and their management companies, as well as insurance companies in the securities market;

Æ ensures the creation of an information disclosure system at the securities market;

Æ approves the qualification requirements for the personnel of professional participants in the securities market and carries out their certification in the form of taking a qualification exam and issuing a qualification certificate;

Æ creation and development of a system of regulations necessary to regulate the securities market;

Æ establishes the procedure for admitting Russian securities to placement and circulation outside the territory of the Russian Federation.

2. The Ministry of Finance of the Russian Federation (MinFin) registers issues of securities of corporations (except for credit organizations), federal subjects and local governments, licenses stock exchanges, investment companies, investment funds, establishes rules accounting operations with securities, issues government securities and regulates their circulation.

3. The Central Bank of the Russian Federation (CB) registers issues of securities of credit organizations, carries out operations and regulates the procedure for credit institutions to carry out operations on an open securities market, pawn lending and rediscounting of bills, establishes and controls antimonopoly requirements for operations on the securities market of credit organizations and organizations producing non-cash settlements for transactions with securities (including depositories), controls the export and import of capital.

4. The State Committee for Antimonopoly Policy establishes antimonopoly rules and monitors their implementation.

The fundamental documents on state regulation of the securities market are:

1. Civil Code of the Russian Federation, parts I and II

This regulatory legal act describes the main provisions of the entire securities market system: it provides a definition of a security, its types, requirements for it, and operations performed with the security.

2. Federal Law “On Joint Stock Companies”

The above law explains the procedure for the creation, reorganization and liquidation of joint-stock companies, the procedure for issuing securities by them, the management of a joint-stock company, the distribution of its profits, control over the activities of a joint-stock company, etc.

3. Law “On the Securities Market”

This law regulates the types of professional activities in the securities market, the issue of securities, the circulation of issue-grade securities, the posting of information about the latter and their advertising, as well as state regulation of the securities market and the activities of self-regulatory organizations.

4. Federal Law “On Banks and Banking Activities”

Article 6 of this legislative act describes possible types activities of a credit institution, taking into account that it has received the appropriate license.

5. Federal Law “On the Central Bank of the Russian Federation”

Articles 22 and 46 describe all possible types of activities of the Bank of Russia related to securities (mainly the issue and circulation of government bonds).

6. Law “On Commodity Exchanges and Exchange Trading”

Rights are negotiated government agencies on the regulation of commodity exchanges, taking into account the inalienability of the exchange’s right to self-government

7. Law “On Currency Regulation and Currency Control”

The conduct of transactions with external securities is described, the rights of residents and non-residents are separately stipulated, as well as the possibility of exporting securities abroad.

8. Federal Law “On the Peculiarities of the Issue and Circulation of State and Municipal Securities”

The entire procedure for issuing securities is described, and the employment of certain government bodies in it is characterized.

9. Federal Law “On Bills of Exchange and Promissory Notes”

10. Law “On the privatization of state and municipal enterprises in the RSFSR"

11. Federal Law “On Mortgage”

12. Federal Law “On the Protection of the Rights and Legitimate Interests of Investors in the Securities Market”

13. Federal Law “On Investment Funds”

14. Federal Law “On Investment Securities”

15. Resolution of the Federal Financial Markets Service of Russia “On approval of standards for the issue of shares when establishing joint-stock companies, additional shares, bonds and their prospectuses”

16. Resolution of the Federal Financial Markets Service of Russia “On approval of standards for the issue of shares and bonds and their issue prospectuses during the reorganization of commercial organizations”

17. Decrees of the President on the development of the securities market

18. Resolutions of the Government of the Russian Federation mainly concern the regulation and development of the government securities market in all their varieties.

In the primary market, government regulation is focused on maintaining a uniform procedure for issuing securities into circulation through state registration of issue prospectuses and through certification and licensing of the activities of professional market participants. In the secondary market, state control is exercised through licensing the activities of professional market participants and through the issuance of qualification certificates giving the right to carry out certain types of activities on the securities market, as well as supervision over compliance with antimonopoly legislation. A special place in regulating the development of the securities market is occupied by the taxation of transactions with securities.

Regulation of processes occurring in the stock market is one of the areas of activity of regional commissions formed in accordance with the Decree of the President of the Russian Federation “On measures for state regulation of the securities market in the Russian Federation.” The purpose of such commissions is to ensure compliance with the norms, rules and conditions for the functioning of the stock market established by the legislation of the Russian Federation, as well as the practical implementation of decisions taken by the Federal Securities Commission of Russia, and to monitor the activities of professional participants of the securities market in the region.

The regional commission includes representatives of the territorial administration (division or department of state property management, financial management), territorial divisions of the State Property Fund, the Department of Justice, the State Tax Inspectorate and the Tax Police, the Department of the State Committee for Antimonopoly Policy and Support for Entrepreneurship Development, the Central Bank, etc. A consulting and advisory body is being created under the regional commission - expert advice. Its members include representatives of government bodies whose activities are related to the regulation of the financial market, representatives of professional participants of the securities market and their unions, other public associations, stock exchanges, and independent experts.

The competence of the regional commission includes the following issues:

a) development of the main directions for the development of the regional securities market and coordination of the activities of government bodies on issues of regulation of the stock market within the established powers;

b) regulation of the procedure for the activities of: 1) legal entities and individuals at the regional securities market; 2) specialized registrars, depositories, investment institutions engaged in maintaining and storing registers of shareholders;

c) determination of mandatory requirements and other conditions for admission of securities to their public placement and circulation.

In accordance with the Federal Law “On the Securities Market,” self-regulatory organizations have the status of structures that develop clear standard requirements for their members. The basic rules for the activities of self-regulatory organizations include requirements for the amount of capital and level of creditworthiness, ethical behavior of members of the organization, conducting business and accounting in accordance with legislative norms, the competence of managers and specialists, information openness, etc.

At the end of 1994 In Russia, the “Professional Association of Stock Market Participants” (PAUFOR) was created. 2 self-regulatory organizations - “Council of Largest Registrars and Depositories” (SCRO) and “Professional Association of Registrars, Transfer Agents and Depositories” (PARTAD) - initiated the development of the regulation “On activities for maintaining a register of securities owners” (adopted on June 21, 1995. ), in accordance with which uniform standards were introduced to regulate the activities of registrars. Active work in the securities market is carried out by the largest self-regulatory organization - the National Association of Stock Market Participants (NAUFOR) and the non-profit partnership "Association for the Protection of the Interests of Shareholders of Enterprises and Organizations" (OPIAC).

NAUFOR unites mainly brokerage, dealer and management companies on the securities market. Was created in 1995. Has regional branches. The main activities of NAUFOR: development of rules and standards of professional activity, development of ethical codes of conduct for professional market participants, monitoring the state of the securities market, assistance in entering the market for newly organized securities trading companies, representing the interests of the community of professional traders in the relevant government bodies authorities.

PARTAD unites registrars and depositories. Established in 1994 Its goal is to develop the RCB infrastructure in the field of registration and depository services. It actively develops rules and standards for conducting registration and depository activities, and participates in the issuance of licenses and qualification certificates.

Commodity exchanges, permanent stock auctions), technical (clearing and settlement, depository, registration network) and organizational infrastructure subsystems ensure the normal functioning of the securities market. All activities Russian market securities is concentrated in Moscow (90%) and St. Petersburg. The regional securities market is concentrated in cities such as Novosibirsk, ...

It is necessary to clearly distinguish between the functions of the Treasury, the Central Bank and the Ministry of Taxation. Another option for an organizational solution to the problem is a serious change and redistribution of the functions of individual departments. 2.3 Prospects for the development of the securities market in Russia As can be seen from the previous paragraphs of this work, the securities market in Russia is going through a difficult, unstable period of formation. Behind...

A major role in the securities market also belongs to self-regulatory organizations of dealers, brokers, depositories, investment funds and other specialized institutions operating in the securities market, created at the initiative of market participants and on a professional basis.

The state delegates part of its functions to organizations of the professional community (self-regulatory organizations). The need for such delegation usually lies in minimizing budget costs when creating market infrastructure, ensuring transparency of rule-making and mandatory participation of professional market participants in the creation of its regulatory legal framework.

Self-regulatory organizations of the securities market are, as a rule, voluntary associations of professional participants that are in relations with the state (the state transfers part of its functions to the self-regulatory organization).

According to Russian legal norms, self-regulatory organizations can take the form of associations, trade unions and professional public organizations. Their functions correspond to those generally accepted in world practice: self-regulation of the activities of participants in the securities market; maintaining high professional standards and staff training; development of financial market infrastructure; carrying out joint scientific research; collective entrepreneurship in its own interests and protecting the interests of investors.

Supervision over the activities of self-regulatory organizations and control over their creation in Russia is carried out by the Central Bank of the Russian Federation.

National Association of Stock Market Participants (NAUFOR). Number of members 266 Branches and representative offices 12 branches: North-West, Ural, Kazan, Rostov, Omsk, Novosibirsk, Oryol, Krasnoyarsk, Samara, Irkutsk, Nizhny Novgorod, Primorsky NAUFOR unites professional stock market participants - brokers, dealers, securities managers and depositories , as well as management companies of investment funds, mutual funds and non-state pension funds.

Non-profit partnership “National League of Managers” (NP “NLU”) Number of members 53 Branches and representative offices None NP “NLU” unites management companies of investment funds, mutual funds and non-state pension funds, as well as professional stock market participants - brokers, dealers, securities managers and depositories.

"National Stock Association (self-regulatory non-profit organization)" (NFA) Number of members 213 Branches and representative offices Does not have

Professional Association of Registrars, Transfer Agents and Depositories (PARTAD) Number of members 65 Branches and representative offices 3 representative offices (North-Western, Volga, Siberian)

Self-regulatory organization Non-profit partnership “National Association of Non-State Pension Funds” (NP “NAPF”) Number of members As of February 21, 2014, the NAPF membership included 75 organizations, including 57 non-state pension funds and 18 non-funds (management companies, special depositories and other organizations operating in the field of non-state pension provision and compulsory pension insurance). NP "NAPF" was created on 06/21/2000, in accordance with the decision of the conference of representatives of non-state pension funds (NPF), held on 02/16/2000. The founders were the largest non-state pension funds in Russia: NPF "Gazfond", NPF "LUKOIL-GARANT", NPF "Ugol", NPF Electric Power Industry, NPF Sberbank, NPF "Surgutneftegaz", NPF "Family".

Self-regulatory organizations of professional participants of the securities market (SRO), which can be formed with the approval of the Federal Financial Markets Service, are called upon to play a certain place in regulating the activities of professional participants of the securities market. Οʜᴎ are voluntary associations of professional participants of the RCB. It is important to note that SROs establish rules for operating at the securities market for their members and monitor their compliance. The purpose of their creation is to ensure the conditions for the activities of professional participants, their compliance with ethics at the securities market, and the protection of the interests of investors.

A self-regulatory organization of professional participants in the securities market is a voluntary association of professional participants in the securities market in the form of a non-profit organization, created for the purpose of participating in the process of regulating the securities market along with state regulatory bodies.

IN table 7 presentation a classification of self-regulatory organizations on the Russian derivatives market is presented.

The Russian securities market has the following main self-regulatory organizations:

National Association of Stock Market Participants (NAUFOR);

Professional organization registrars, transfer agents and depositories (PARTAD).

The participants in these organizations, in addition to professional participants in the stock market, usually also include commercial banks, investment companies, organizations specializing in the development of computer software, etc.

There are also other voluntary associations of professional participants of various kinds on the market. Organizations of this kind directly related to the securities market include, for example, the Association of Participants in the Bill Market (AUVER).

Self-regulatory organization “National Stock Association” (NSA) was established by the largest operators of the Russian securities market with the participation of the Ministry of Finance of the Russian Federation and the Bank of Russia in January 1996 (initially as the National Association of Participants in the Government Securities Market - NAURAG).

The association (as of 01/01/2007 ᴦ.) includes more than 240 credit institutions and investment companies - professional participants in the securities market from 25 regions of Russia and all 7 federal districts, whose operations account for more than 60% of the volume of the Russian securities market.

The National League of Managers (NLM) is a self-regulatory organization that unites companies that manage assets of mutual investment funds (MUIFs), joint-stock investment funds (AIF), as well as pension reserves, pension savings and other assets.

Non-profit partnership of professional participants of the stock market of the Ural region (PUFRUR).

The National Association of Non-State Pension Funds (NAPF) was established in order to provide favorable conditions for the activities of members of the Partnership, protect the interests of members of the Partnership, investors, participants and insured persons, establish rules and standards of activity that ensure the effectiveness of the work of members of the Partnership.

The Association was founded on March 22, 2000 by the following non-state pension funds: NPF Gazfond, NPF LUKOIL-GARANT, NPF Ugol, NPF Electric Power Industry, NPF Sberbank, NPF Surgutneftegaz, NPF Sem neyyʼʼ. State registration was carried out on June 21, 2009.

Self-regulatory organizations together with state regulatory bodies develop ethical rules work on the market, which professional market participants voluntarily undertake to comply with. These rules have important for the gradual formation of a modern high market culture among all market professionals.

Questions for the seminar:

1. What role does regulation play in the stock market? Who can exercise regulatory functions?

2. By what methods can regulation be carried out? Which of them, in your opinion, provide more effective management of market processes?

3. Based on the study of legislation, characterize the functions of the Federal Service for Financial Markets.

4. What role does self-regulation play in the stock market? How do state regulators and self-regulatory organizations interact with each other? How is the issue of self-regulatory organizations resolved abroad?

5. Based on the data from the official website of the Federal Financial Markets Service, characterize the main activities of the regulator in the near future. Have the goals declared earlier by the FFMS been achieved?

It is important to note that for self-study:

Add questions from the UMP according to the topic

Self-regulatory organizations on the securities market - concept and types. Classification and features of the category “Self-regulatory organizations on the securities market” 2017, 2018.

Self-regulation as a property of the system. Principles of self-regulation. SRO in the USA. Domestic SRO model. Functions of SRO. Two SRO ideas. Advantages and disadvantages of SRO.

A property of the system is the ability to self-regulate (compare: a sign of organizational unity and the governing bodies of a legal entity). The main idea of self-regulation is the implementation by persons operating in a certain market of rules and standards that do not come from the state, but from these persons themselves and are approved by them. In order to reduce organizational costs, a statutory entity is created to oversee the implementation of rules and standards and to impose sanctions on violators. Such organizations are called “self-regulatory”.

We will find the beginnings of self-regulation in guilds and workshops as harbingers of corporations, in the law of merchants. But with the strengthening of statehood, the supreme power takes upon itself the task of arranging private relations between members of society and state regulation gradually replaces self-regulation<41>.

The idea of self-regulation of subjects of civil legal relations was deeply developed in the science of Soviet civil law<42>. "Civil-legal organizational relations are legal relations based on the equality of their participants, expressing the activities of citizens and organizations carried out within the limits of the law to streamline their relationships and coordinate efforts in the process of implementing the state or their own initiative"<43>.

Applied to joint stock companies and the securities market was historically the first to experience self-regulation, which was carried out by stock exchanges. The terms “self-regulation” and “self-regulatory organization” first appeared in the USA and Great Britain. Moreover, until 1998, the UK, when regulating the stock market, relied only on self-regulatory bodies (in fairness, we note that this is a unique case and now exactly the opposite processes are taking place in this country).

As principles of self-regulation, IOSCO names: 1) inclusion of self-regulatory organizations (SROs) in the regulatory system to the extent required by the size and degree of development of markets; 2) control over the SRO by the state regulatory body; 3) compliance by the SRO with ethical norms and standards in the performance of its functions.

In the United States, self-regulatory organizations of professional participants in the securities market are represented by stock exchanges, the National Association of Stock Dealers (NASD), the creation of which was provided for by the Maloney Act of 1938, and the Municipal Securities Trading Council. They are responsible for monitoring compliance with securities legislation. SROs require their members to submit monthly financial statements, conduct audits of the activities of firms (in NASD up to 14 thousand per year), and certify specialists of member firms<44>. Stock exchanges are considered by Congress to be quasi-governmental organizations. Membership in the NASD is a mandatory condition for brokers/dealers to enter into transactions with clients, which allows some authors to draw an analogy between participation in an SRO and licensing<45>. All stock exchanges and the NASD have established electronic market watch systems (Stock Watches) to detect abnormal market activity that may be associated with manipulation or insider trading. Having received a signal about a suspicious transaction, control authorities may temporarily suspend trading in this security until the circumstances that led to a sharp change in prices or trading volume are clarified. Violators of the legislation and rules of the SRO are subject to fines, exclusion from members of the organization or suspension of membership, revocation of a specialist’s certificate or suspension of its validity. All disciplinary sanctions imposed by the SRO are reported to the SEC and may be subject to further review at the initiative of the SEC or one of the parties.

The domestic SRO model was developed taking into account foreign experience, where they are part of the regulatory core of the stock market and play a significant role. The first SROs arose and existed only in the securities market, and the term itself was used in relation to the stock market. These were the National Association of Stock Market Participants (NAUFOR) and the Professional Association of Registrars, Transfer Agents and Depositories (PARTAD).

Currently, a self-regulatory organization of professional participants in the securities market in Russia is a voluntary association of at least 10 professional participants in the securities market, established by them in a membership-based, but without income distribution, organizational and legal form of a non-profit organization for the purposes of:

a) development and improvement of the system of functional regulation of the securities market;

b) ensuring conditions for the professional activities of securities market participants;

c) exercising control and supervision over the activities of professional participants in the securities market;

d) compliance with and improvement of standards of professional ethics in the securities market;

e) protecting the interests of security owners and other clients of professional securities market participants who are members of the SRO;

f) establishing rules and standards for conducting transactions with securities that ensure efficient activity in the securities market.

An organization created by professional participants in the securities market acquires the status of SRO on the basis of a permit issued by the federal executive body for the securities market (licensed activity). Already in order to obtain the appropriate license, the SRO, among other documents, is obliged to present the rules and regulations adopted by its members and binding on all its members. These rules and regulations must contain the requirements for the SRO and its members and:

1) of a general nature for legal entities (for example, in relation to the minimum amount of own funds);

2) characterizing the SRO as an organization based on membership (for example, regarding the rules for a professional participant in the securities market to join the organization and leave or be excluded from it);

3) characterizing the SRO as an organization in the field of professional activity (for example, in relation to the rules and standards for carrying out professional activities);

4) relating to antitrust and competition regulation (for example, in relation to rules limiting price manipulation);

5) of a guarantee nature for clients (for example, in relation to the professional qualifications of personnel, the obligations of SRO members in relation to clients and other persons to compensate for damages due to errors or omissions in the performance of professional activities by a member of the organization, as well as unlawful actions of a member of the organization or his officials and (or) personnel), etc.

SROs are vested with authority over participants. These organizations are given the right to issue acts (internal rules and standards) that are binding on participants; create a control body; carry out inspections of compliance by members of the organization with established rules and standards and introduce the results of inspections to other members of the organization, apply sanctions and other measures against members of the organization, their officials and (or) personnel. Sanctions are mainly aimed at suppressing illegal activities of professional participants in the securities market, since they indirectly protect the rights of shareholders. Mechanisms for enforcing the execution of SRO acts tend to be administrative. Finally, these organizations have the right to resolve disputes out of court, both between clients and their members, and between members.

The level of standards and requirements imposed by the SRO on the activities of its members, enshrined in its internal documents, must not be lower than the level of standards and requirements established by the federal executive body on the securities market.

SROs operate in accordance with the Federal Law "On the Securities Market"<46>. The functions of the SRO can be classified into: 1) rule-making; 2) organizational and support; 3) control; 4) suppressive.

When implementing any of them, much attention is paid to the requirements for ensuring openness of information. Within the second group, we especially note the educational and educational functions<47>, as well as those gravitating towards the functions of state regulation. In the first case, the SRO has the right, in accordance with the qualification requirements of the federal executive body for the securities market, to develop training programs and plans, to train officials and personnel of organizations carrying out professional activities in the securities market, to determine the qualifications of these persons and to issue them qualification certificates. In the second, it issues applications for obtaining licenses from licensing authorities for the right to carry out professional activities in the securities market, and also sends to the federal executive body for the securities market proposals for improving the legislation of the Russian Federation on securities.

In order to implement the control and suppressive functions of the SRO:

1) exercises control over compliance by its members with financial, organizational, technical, special and other requirements established by state regulatory bodies and the organization itself, including standards for the adequacy of their own funds;

2) monitors compliance with the qualification requirements for managers and specialists of SRO members;

3) on its own initiative or on behalf of the federal executive body for the securities market, conducts inspections of the activities of its members, as well as persons who have submitted applications to join the SRO;

4) appoints and recalls inspectors to monitor the activities of members;

5) conducts checks of complaints and statements of citizens and legal entities containing information about violations of their rights by members of the SRO;

6) requests from its members documents and information necessary to establish facts of violation of the charter and internal documents of the SRO, the legislation of the Russian Federation on securities and other legal acts;

7) exercises control over the participation of its members in special guarantee and insurance funds created to compensate for the risks associated with carrying out professional activities in the securities market;

8) sends to the federal executive body for the securities market (and, if necessary, to the Central Bank of the Russian Federation) information about identified violations of the legislation of the Russian Federation on securities and reports on the results of inspections carried out;

9) sends to its members mandatory instructions to eliminate violations and eliminate their consequences;

10) applies penalties and other sanctions to violators in accordance with the legislation of the Russian Federation, acts of the federal executive body for the securities market, the charter and internal documents of the SRO;

11) sends to the federal executive body for the securities market submissions on the application of sanctions in relation to its members who commit violations of the legislation of the Russian Federation on securities, on the suspension or cancellation of licenses issued to members of the SRO (in relation to credit organizations, this information is also sent to Central Bank of the Russian Federation).

We especially note that the SRO imposes sanctions and applies enforcement measures to its members who violate not only the charter and internal documents of the organization, but also the requirements of the legislation of the Russian Federation on securities, other legal acts of government bodies that regulate and control the securities market.

An analysis of existing and current legal acts, as well as doctrinal research, leads to the identification of two SRO ideas at the present stage:

2) SROs are created to ensure self-regulation of participants in civil legal relations. The main task of an SRO is to promote self-organization of relations between its participants. Self-regulation is not a continuation of state regulation, but is opposed to it. SROs develop standards and rules for their members, monitor only their compliance and cannot be vested with government powers.

Due to the fact that such polar opinions exist, the development of the Federal Law “On Self-Regulatory Organizations” has begun, in which, according to the developers, it is intended to consolidate the concepts of “self-regulation” and “self-regulatory organization”. In October 2003, a corresponding bill was submitted to the State Duma by the Government of the Russian Federation<48>was adopted in the first reading. However, there is still no consensus on what the SRO Law should be.

Both identified positions are legalized abroad and, with their proper combination, there is no problem serious problems. But in the domestic model of regulation at the level of legal acts, attempts were made to make participation in an SRO on the securities market - a voluntary association - mandatory. After this idea was abandoned in the legislation on the securities market, this approach was legalized in the Federal Law “On Insolvency (Bankruptcy)”.

It seems that we are not dealing with shortcomings inherent in SROs, but with distortions in lawmaking and law enforcement practice.

SROs themselves have a number of advantages: 1) processes of uniting entrepreneurs and professionals on a mutually beneficial and lawful basis; 2) the availability of information that is sometimes more reliable than that of state regulatory bodies; 3) the ability to quickly respond to changes occurring within a certain professional community; 4) reduction budget costs related to state regulation and control of the activities of SRO participants.

The disadvantages include the fact that, despite the importance of the activities of SROs, they can only protect the rights of their clients. However, along with them, there are public organizations to protect the rights of depositors and shareholders (sometimes they are classified as consumer rights organizations). Without dwelling on our own assessment of these organizations, we note that they are created, as a rule, to protect a certain group of people who have suffered losses from a particular company.

In general, the creation and activities of SROs are an objective trend in the development of socio-economic relations and shareholder law. All developed countries combine government regulation and self-regulation. At the same time, they pursue similar goals.

Let's summarize.

A property of the system is the ability to self-regulate, the main idea of which is the compliance by persons operating in a certain market with rules and standards that do not come from the state, but from these persons themselves and are approved by them.

In relation to joint stock companies and the securities market, self-regulation was historically the first to arise, which was carried out by stock exchanges.

A classification of SRO functions is proposed: 1) rule-making; 2) organizational and support; 3) control; 4) suppressive.

Based on the analysis of legal acts and doctrinal research, two SRO ideas are identified:

1) SROs represent a continuation of state regulation and partially replace it, since they are given some state powers. In relation to business entities that are members of the SRO, such an organization exercises control over their compliance not only with the internal rules and standards of the SRO, but also with legislation in general;

Both identified positions are legalized abroad and with their proper combination no serious problems arise.

The advantages and disadvantages of SRO are highlighted. The first include: 1) processes of uniting entrepreneurs and professionals on a mutually beneficial and lawful basis; 2) the availability of information that is sometimes more reliable than that of state regulatory bodies; 3) the ability to quickly respond to changes occurring within a certain professional community; 4) reduction of budget costs associated with state regulation and control of the activities of SRO participants. The second is the limitation of functions (primarily security and protection) by the composition of participants.

The creation and activities of SROs are an objective trend in the development of socio-economic relations and shareholder law. All developed countries combine government regulation and self-regulation, which pursue similar goals. In general, in developed countries a “mixed system” is emerging, which is characterized by the fact that economic control in it is exercised by society, the state and private institutions.

Self-regulatory organization of professional participants in the securities market.

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