Trust management of funds - Banking law

3.4. Trust management of cash

In accordance with paragraph 1 of Art. 1012 of the US Civil Code under a trust management agreement, one party (the founder of the management) shall transfer the trust management to the other party (trustee) for a certain period of time, and the other party undertakes to manage this property in the interests of the founder of the management or the person (the beneficiary) specified by him.

The contract of trust management is real (comes into force from the moment of transfer to the asset manager in trust management); bilaterally-binding and compensated if the contractor is a commercial organization (bank) as a contracting party.

The participants of the trust management agreement are: the founder of the management (natural or legal person) - the account holder; trust manager - a bank that has a license to carry out such transactions, which has concluded a trust management agreement. Credit organizations can not transfer their property to trust management of other credit institutions.

According to paragraph 1 of Art. 1016GK of the United States to the number of material terms of the treaty under consideration are:

- the exact designation of the composition of property transferred to trust management (since, in particular, upon expiration of the contract, this property is subject to return to the founder);

- the name of the beneficiary (legal entity or citizen) in favor of which trust management is established, including in cases when the founder of the management is the beneficiary under this agreement;

- the size and form of remuneration to the administrator, unless the contract is not free of charge;

- the term of the contract.

As a general rule, property transferred to trust management must meet the following criteria: allocated on a separate balance sheet (account), be individually identified, upon termination of trust management, returned to the owner.

Regarding trust management of funds, the legislator proceeds from the presumption of a ban: money can not be an independent object of trust management, except for cases directly stipulated by law (Clause 2, Article 1013 of the Civil Code of the United States). The authorization for trust management of funds is established in cl. 3 p. 2 of Art. 5 of the Law on Banks. The asset of trust management can only be the non-cash money of the founder of management. Cash can not become an independent object of trust management, since they do not belong to individually defined things, in circulation they are depersonalized and at the end of the contract term the same banknotes can not be returned to the owner.

Cash is determined not by the number of individual bills, but by the monetary units that are contained in them. The special significance of money in civil circulation is that they fulfill the function of a universal equivalent of value and can be used as a universal means of payment.

Non-cash funds, which are the obligatory right of the client's request to the bank, can be transferred to trust management in the bank account (and thus legally separated); in this case, we can talk about trust management of property rights.

According to EA Sukhanov1, can not be recognized as a kind of trust management of the activities of the management companies of mutual funds that "invest" money resources of its depositors in securities, and sometimes also in real estate, bank deposits and other property, i.e. they do not manage them on the basis of a trust management agreement, but alienate them on the basis of sales contracts, loans, bank deposits, etc.

However, the norms of legislation and other legal acts refer specifically to trust management of funds.

So, in part 5 of Art. 3 of Federal Law No. 82-FZ of May 17, 2007 "On the Development Bank" it is stated that Vnesheconombank carries out dealer's, depository activities, securities management activities on the securities market, as well as carries out trust management of monetary funds and other property, including those in state ownership.

In paragraph 1 of Art. 13 of the Federal Law of November 29, 2001, No. 156-FZ, "On Investment Funds"; it is established that only money can be transferred to the trust management of open and interval mutual investment funds.

Trust management of funds is usually carried out through the MBM, which is a property complex consisting of property transferred to the trust management of different persons and combined on the right of common ownership, as well as acquired by the trust manager when performing trust management.

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Thus, in this case we are talking about a specialized trustee. Passing the relevant property in the BMBU, within the meaning of paragraph 1 of Art. 246 of the US Civil Code, the founders of the management are deprived of the opportunity to dispose of property in common ownership. In addition, the founders are deprived of the pre-emptive right to purchase the share provided for in Art. 250 of the US Civil Code.

The objects of trust management can be cash in United States and foreign currencies, securities.

A person (both physical and legal) who has contributed a portion of the property to the BMMF is considered to be the founder of the trust management, regardless of whether this share has been contributed in its interests or in the interests of another person (beneficiary). Entry into the BMMB is formalized by the interconnection agreement concluded between the trust manager and the founder. From this it follows that the founder of the management can not change the terms of the contract offered by the trustee.

According to the general rule, a credit organization acts as a trust manager, but in cases when the credit organization itself is the founder of trust management of property, the decision to create an MBMU is made by the management body of a credit organization authorized to adopt such a decision.

The assets of the MBMs represented by securities must be kept in the custodian's own depository or in other depositories.

As a result of the termination of the trust management agreement, the founder of the management has the right to receive only cash in the amount of the existing stake in the managed property.

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