SOME ASPECTS OF THE LEGAL STATUS OF THE NATIONAL BANK OF UKRAINE
Authors: T.S. Hudima
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The legal status of the National Bank of Ukraine (NBU) is investigated. Based on the analysis, it is substantiated that the NBU can be considered as a state-owned entity (possibly, unitary), which is restricted in providing paid services in the banking market (in particular, it cannot provide the full range of paid services specific to a commercial bank ) and entity, which the state delegated the respective management and control powers to carry out the functions, enshrined in Art. 99 of the Constitution of Ukraine and Articles 6, 7 of the Law of Ukraine "On the National Bank of Ukraine". It is proved that imposing restrictions on conducting commercial operations in the banking market creates prerequisites for elimination by the NBU of possible anti-competitive influence on other economic entities — participants of the banking market.
It is argued that the institute of delegation of authority, as a well-known to legal system of Ukraine as a tool for delegating authority from one entity to another, can be used to confer on the NBU (as economic entity) with a range of state powers in those areas of public relations, which currently fall within the competence of the NBU. The use of the institute of delegation of authority will lay the foundations for the formation of the legal status of the NBU by the legal methods and means currently existing in the legislation and the legal theory of Ukraine. Although the phrase "delegation of powers" is mentioned in both the Constitution of Ukraine (Articles 118, 119, 138) and the laws of Ukraine (in particular, the Law of Ukraine "On Protection of Economic Competition"), however, for the purposes of economic science the common understanding of this phrase it is absent, especially with regard to the legal basis and features of the delegation of powers to economic entities. This stipulates the objective need to make appropriate amendments to the text of the Economic Code of Ukraine.
Given that relations between the state and economic entities require clear, balanced and extraordinarily prudent legal regulation, which, on the one hand, should promote free business and, on the other, should enable the state to influence these processes in order to achieve universal (public) goals, the legal status of the NBU is determined by the Constitution of Ukraine and special legislation needs clarification. Specification of legal status, in turn, will improve the mechanism of implementation of the legal responsibility of the NBU, provided for in Art. 64-1 of the Law of Ukraine "On the National Bank of Ukraine". In particular, it would be expedient to provide for the provision that the state is responsible for the obligations of the NBU that have arisen in connection with the exercise of the state’s delegated powers and for the obligations arising as a result of the implementation of its own business activity, the NBU is responsible its own property.