Illegal liquidation of banks causes material damage to the state and reputational damage to the owners of financial institutions. However, the Ukrainian legislation is written out in such a way that officials of the National Bank guilty of making illegal decisions do not bear any responsibility for this. It is necessary to change the legislation in such a way that the decision to liquidate the bank comes into force after its appeal in the courts. This opinion was expressed in an exclusive comment to UNN by the Managing Partner of the Amber law firm, candidate of Economic Sciences, lawyer, honored lawyer of Ukraine Semyon Khanin.
The Dnipropetrovsk District Administrative Court declared illegal and overturned the decision of the National Bank of Ukraine to revoke the license and liquidate Concord bank. thus, the bank's liquidation was declared illegal. The National Bank said it would appeal the court's decision.
According to Khanin, there are many examples in Ukraine when banks won courts of all instances in the National Bank, even the Supreme Court. Despite this, not a single NBU official was involved in making an illegal decision.
Thus, our legislators have adopted legislative norms so that the persons who made such a decision – illegal, as the court found, where the Supreme Court has already made a final decision-do not bear any responsibility. None at all. And this question it is so very painful
At the same time, according to him, the illegal liquidation of the bank harms not only its owners, but also the state. In particular, according to him, in the event of illegal liquidation of the bank, its shareholders suffer huge material losses, because the "anti-bank" law is spelled out in such a way that the shareholder has the right to claim only the remaining funds in the bank if it is liquidated.
Khanin added that it often happens that during liquidation, loans are sold for pennies to collectors and the bank immediately becomes unprofitable from profitable, that is, it turns out that shareholders also owe money.
At the same time, he noted that even a non-profitable business costs money and can be sold. And in the case of a bank, it is worth millions, because it occupies a share in the banking market. When their license is revoked, their normal operation stops and depositors are forced to demand a refund of their funds.
They canceled it, declared illegal the revocation of the license, and the state paid people this money from its own funds through the DGF. That is, the damage caused to the state is obtained by those persons who made the decision to revoke the bank's license. That is, in fact, the damage to the state and reputational – because it undermines public confidence in the Ukrainian banking system, in the hryvnia, and the damage due to payments of the DGF, and individuals who are clients of the bank, and legal entities, and shareholders – is enormous. Therefore, such decisions should be expressed 100%.%
He also added that for some reason, the legislator did not provide for procedures to appeal the decision of the National Bank to revoke the license and liquidate the bank before it comes into force. The decision of the NBU board comes into force immediately: today they made a decision, and tomorrow the bank is already deprived of its license with all further consequences.
And they do not bear any responsibility for this (NBU officials – ed.), but even if they were all conditionally arrested, it would not reduce losses to the state, individuals, or enterprises. Therefore, there should be changes to the legislation that provide not so much for liability as for a procedure, so that only after a judicial appeal such decisions come into force
In addition, according to the lawyer, the bank, in respect of which an illegal decision on liquidation was made, should be able to resume its work.
When we say that a bank has been liquidated illegally, it means that someone has violated the law. Of course, it is absolutely necessary, in case of an illegal decision, to allow the bank to return to the market. Of course, to compensate for state losses at the expense of money, but it is possible to note the norm that no one should do anything illegal. To prevent this, such decisions must come into force after the judicial appeal procedure
Recall
Despite the war in Ukraine, the process of withdrawing banks from the market has not stopped. So, since February 24, 2022, the liquidation process has been started for 8 banks. Last year, for the first time in Ukraine, not only bankrupt banks, but also profitable institutions were liquidated and revoked-We are talking about Concord bank. The process of revoking a banking institution's license takes place without a court order.
Of course, the owners and shareholders of banks can appeal the decision of the regulator - the NBU, after it makes a decision to liquidate the bank, however, in general, the process of withdrawing a banking institution from the market, if it is launched, is irrevocable.
In addition, the issue of liquidation of a profitable bank has not been settled in Ukraine . As stated by co-owner of Concord bank Elena Sosedka, at the time of the regulator's announcement of the decision to liquidate the bank, there were enough highly liquid assets in the financial institution to make all the necessary payments in 2-3 weeks. But the bank's liquidation process is strictly regulated by law and can generally last up to three years.