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Article Legal Nature of the Agreement on Provision of Non-Banking Financial Services
Authors
ANASTASIIA POPOVA

Candidate of Law, Associate Professor, Associate Professor of the Department of Economic Law and Economic Judiciary of the Educational and Scientific Institute of Law of the Taras Shevchenko National University of Kyiv (Kyiv, Ukraine) avpopova@meta.ua

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 4 / 2022
Pages 67 - 79
Annotation

The emergence of new financial services, increasing the competitiveness of non-banking financial services, which complicate the procedure for establishing and formalizing contractual relations in this area, as well as positive dynamics in the legal regulation of relations in non-banking financial services.

The purpose of the article is to analyze the economic and legal nature of agreements on the provision of non-banking financial services, to define their concepts, as well as to explore and highlight the features of the subject and subject composition of such agreements.

As a result of the study, the economic and legal nature of the contract for the provision of non-banking financial services. The subject of the agreement on the provision of non-banking financial services are the relevant services, the object of which are financial assets, which according to the new Law of Ukraine “On Financial Services and Financial Companies” will correspond to the category “financial assets”. The author, characterizing the subject of the contract for non-banking financial services, draws attention to its complexity (complexity) in some cases, concludes that the subject of the contract for non-banking financial services may be not only relevant services but also related services must be drawn up in separate contracts for the provision of ancillary or intermediary services.

Emphasis is placed on the expediency of distinguishing between ordinary financial transactions of economic entities that carry out in the course of their activities and financial services provided in the course of their core business. As a result of the study, the author concludes that the parties to the agreement on the provision of nonbanking financial services are the provider of non-banking financial services and theclient, and proposes to allocate business agreements on the provision of non-banking financial services and consumer contracts for the provision of non-banking financial services, the qualifying features of which are the subject composition (the other party to the contract is a consumer-individual) and the purpose of their conclusion (meeting the personal needs of consumers not related to business or independent professional activity). It is noted that the conduct of a full-scale war on the territory of Ukraine and the imposition of martial law led to the legislative establishment of precautionary measures for economic activities for the provision of non-banking financial services, in particular, in the field of licensing.

On the basis of the analyzed features and taking into account the provisions of the Law of Ukraine “On Financial Services and Financial Companies” the definition of the agreement on the provision of non-banking financial services is formulated. Nonbanking financial services agreement is a binding legal relationship between professional participants in non-banking financial services markets and their clients, the content of which is the mutual rights and obligations of the parties to provide / receive non-banking financial services aimed at forming and using their own and / or borrowed funds in order to make a profit or maintain their real value. It is proposed to use the term “client” (any business entity) for commercial contracts for the provision of non-banking financial services, and “consumer” (any individual) for consumer contracts for the provision of non-banking financial services.

 

Keywords agreement on provision of non-banking financial services; non-bank financial service; non-banking financial services markets; professional participant in nonbanking financial services markets
References

Bibliography

Authored books

1. Luts V, Velykanova M, Dohovory v tsyvilnomu pravi Ukrainy: navchalnyi posibnyk (Iurinkom Inter 2016) (in Ukrainian).

2. Shcherbyna V, Hospodarske pravo: pidruchnyk (5-te vyd, pererob i dopov, Yurinkom Inter 2012) (in Ukrainian).

 

Edited books

3. Podtserkovnyi O (red), Hospodarske pravo: pidruchnyk (Odissei 2010) (in Ukrainian). Encyclopaedias 4. Velykyi entsyklopedychnyi yurydychnyi slovnyk (Shemshuchenko Iu red, Yurydychna dumka 2012) (in Ukrainian).

 

Journal articles

5. Amelina A, ‘Osoblyvosti dohovoriv pro nadannia finansovykh posluh’ (2019) 3 Yurydychnyi naukovyi elektronnyi zhurnal 53 (in Ukrainian).

6. Popova A, ‘Protsesualni osoblyvosti rozghliadu sporiv, shcho vynykaiut iz dohovoriv pro nadannia nebankivskykh finansovykh posluh’ (2020) 7 Pravo Ukrainy 161 (in Ukrainian).

7. Sviatoshniuk S, ‘Pravova pryroda dohovoriv pro nadannia finansovykh posluh ta yoho mistse u systemi tsyvilno-pravovykh dohovoriv’ [2014] (19) 4 (25) Visnyk ONU im I I Miechnykova. Pravoznavstvo 129 (in Ukrainian).

 

Websites

8. Sherehi V, ‘Rozmezhuvannia tsessii ta faktorynhu z urakhuvanniam praktyky Verkhovnoho Sudu’ <https://zib.com.ua/ua/133117-rozmezhuvannya_cessii_ta_faktoringu_ z_urahuvannyam_praktiki_.html> (accessed: 22.04.2022) (in Ukrainian).

 

Theses

9. Drozdova N, ‘Dohovir pro nadannia finansovykh posluh u tsyvilnomu pravi Ukrainy’ (avtoref dys kand yuryd nauk, 2005) (in Ukrainian).

10. Holina O, ‘Hospodarsko-pravova instytualizatsiia dohovoriv pro nadannia posluh’ (dys kand yuryd nauk, 2016) (in Ukrainian).

11. Orzikh Yu, ‘Brokerskyi dohovir: tsyvilno-pravovyi aspekt’ (avtoref dys kand yuryd nauk, 2008) (in Ukrainian).

 

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