The prosecutor's office of Nikolaev checked legality of activity of the Nikolaev collection companies and banking institutions: "Creditprombank" and "Energobank" give collectors information on clients which is bank secret, violating thereby the law.
For the purpose of check of legality of activity of the collection companies by city prosecutor's office in 2009 2 corresponding inspections in such companies and banking institutions were carried out.
By studying of information on the specified question on the Internet it was established that in Nikolaev about 10 enterprises which provide collection services work.
They act, as a rule, in the form of the limited liability companies which primary activity is providing legal and consulting services. However, in view of volumes and uniformity of business which they run, there are bases to consider that the only purpose of their functioning is compulsory and even illegal collecting debts.
According to the chief of the Nikolaev regional management of JSC State Savings Bank of Ukraine headed by it by banking institution of the agreement on service on collecting debt on credit agreements with one enterprise didn't consist.
Work in the specified direction is carried out by structural division of the Nikolaev regional management of JSC State Savings Bank of Ukraine. Cooperation with the enterprises which provide services in collecting debt, is impossible because for performance of conditions of the relevant contracts it is necessary to provide information on the client which is bank secret.
Between the Nikolaev branch of JSC "Creditprombank", branch AB "Energobank" in Nikolaev and JSC Southern Debt Company agency contracts according to which powers concerning compensation of debt on credit agreements which are signed by natural and legal entities with banking institution are conferred to the last are signed.
Thus It should be noted that according to Art. 60 of the Law of Ukraine "About banks and bank activity", information concerning activity and a financial condition of the client which became known to bank in the course of service of the client and relationship with it, or to the third parties at service to bank and which disclosure can do material or moral harm to the client, is bank secret.
Bank secret, in particular, is: data on bank accounts of clients, including correspondent accounts of banks in National bank of Ukraine; operations which were performed in advantage or at the request of the client, the agreements carried out by it; financially - an economic condition of clients; systems of protection of bank and clients; information about organizationally - legal structure of the legal entity - the client, her heads, activities; data of rather commercial activity of clients or trade secret, any project, inventions, product samples and other commercial information; information concerning the reporting under separate bank, except for that which is subject to publication; codes which are used by banks for information security.
Article 61 of the Law of Ukraine "About banks and bank activity" provided an obligation of banks to keep bank secret.
According to Art. 62 of the Law of Ukraine "About banks and bank activity", information concerning legal entities and individuals which contains bank secret, reveals banks:
1) by the letter of inquiry or according to the written permission of the owner of such information;
2) according to the written requirement of court or by a court decision;
3) to bodies of prosecutor's office of Ukraine, Security service of Ukraine, the Ministry of Internal Affairs of Ukraine, Antimonopoly committee of Ukraine, - according to their written requirement concerning transactions on the accounts of the particular legal entity or the natural person - the subject of business activity for a concrete period;
4) to bodies of the State Tax Administration of Ukraine according to their written requirement for questions of the taxation or currency control concerning transactions on the accounts of the particular legal entity or the natural person - the subject of business activity for a concrete period;
5) to specially authorized body of executive power concerning financial monitoring according to its written requirement of rather additional information about financial operation which became object of financial monitoring;
6) to bodies of the public executive service according to their written requirement for questions of performance of decisions of the courts concerning a condition of accounts of the particular legal entity or the natural person - the subject of business activity.
Despite the above-stated requirements of the legislation, the relevant contracts with the collection companies are signed by heads of banking institutions, and the last provide information on debtors which is bank secret.
Recently some banks take measures concerning inclusion in credit contracts of points according to which the bank has the right to involve in collecting debt on the contract the third parties in case of non-performance of contractual conditions by the borrower. However existence of such clause of the contract isn't the written permission of the owner and the basis for disclosure of bank secret because the exclusive list of bases for its disclosure is defined by article 62 of the Law of Ukraine "About banks and bank activity" which text is given above.
Besides, there were facts of withdrawal by banks at borrowers of cars who are acquired for proceeds of credit and are mortgage property, for the purpose of ensuring performance of conditions of credit agreements.
Banking institutions offer debtors allegedly the free help with storage of mortgage property on bank parkings. However, as soon as the car of the borrower gets on such parking, the bank starts taking at once measures concerning its realization though such facts are unknown to many borrowers and they on the specified actions of bank didn't give the consent. Thus the majority of citizens don't realize that such actions of bank lead to violation of their rights, as depositors on using a pledge subject which is provided by article 586 of the Civil code of Ukraine. Also procedure of the address of collecting regarding pledge in a judicial order which is defined by article 590 of the Civil code of Ukraine is broken.
According to articles 67, 71, 73, 74 of the Law of Ukraine "About banks and bank activity", the National bank of Ukraine is allocated with powers concerning implementation of bank supervision, carrying out inspection checks of banks, application of actions of influence and sanctions for violation of the banking legislation.
Thus it should be noted that article 355 of the Criminal code of Ukraine provided responsibility for coercion to performance гражданско - legal obligations. In case of the requirement of transfer of someone else's property or the right for property or commission of any actions of property character there comes responsibility under article 189 of the Criminal code of Ukraine. For deliberate disclosure of bank secret criminal liability under article 232 of the same code is provided.
By results of the carried-out inspections by prosecutor's office of the city the instruction about elimination of the found violations of the banking legislation to the head of department of National bank of Ukraine in the Nikolaev area is brought, the assistant prosecutor of Nikolaev Victoria Tereshchenko reports.