Banking business
Banking transactions are banking in Germany in § 1 para. 1 German Banking Act (KWG) finally listed business areas , including in particular securities transactions , credit transactions , payment transactions and deposit business are. All banking transactions are legally defined in terms of content and scope in the KWG. Business , banking business in Germany want to operate, need to § 32 KWG permission of the Banking Supervision BaFin ( Federal Financial Supervisory Authority ).
Financial services are to be distinguished from banking transactions in accordance with Section 1 (2) KWG. a. the investment brokerage and investment advisory services include.
General
To the business purpose of a credit institution or a financial services institution to define, the German has banking supervisory law decided to single typical banking business areas as part of an exhaustive list included in § 1 para. 1 and para. 1a KWG. From a legal point of view, banking transactions are therefore regarded as a specific legal term . Because of the concluding list, the legislature clearly indicates by means of an enumerative list that it does not allow the scope of application to be extended to similar, unmentioned cases ( Latin: "enumeratio ergo limitatio" ). As a result, the list has an exclusionary effect for all facts not covered by the regulation and cannot be expanded through interpretation . This brings legal certainty to the circles involved , because either a certain business is part of the banking business or not.
If it is part of it, then it has legal consequences . According to section 32 (1) sentence 1 KWG, an official permit from BAFin is required for anyone who wishes to conduct banking business in Germany on a commercial basis or to an extent that requires a commercially established business operation. According to the wording and system of the regulation, it is sufficient to conduct one of the banking transactions. For the commercial operation of the banking business, it is sufficient that it is geared towards making a profit and is set up for a certain period of time. Conducting a banking business does not only include the conclusion and processing of the legal transactions listed in sentence 2 of the KWG regulation, but also the essential steps leading to the conclusion of a contract. The term of operation is borrowed from general commercial law . There it extends beyond legal transactions to other commercial-advertising activities in order to ensure efficient trade supervision. Correspondingly, the regulatory purpose of Section 32 (1) Sentence 1 KWG requires, according to the BVerwG, an interpretation of the term “operating” that includes all the steps that are essential for the preparation and implementation of the specific banking business. For this purpose, the reservation of permission does not start with the conclusion of individual legal transactions, but rather covers the entire business activity including the preparation of the specific conclusion of a contract. The regulation thus contains a preventive prohibition with reservation of permission, which starts with preparatory actions for banking transactions.
The strict regulation aims to maintain the functionality and integrity of the German credit and financial market, which also protects customers (protection of creditors ). This creditor protection extends beyond the safeguarding of liquidity and the investor protection mentioned in Section 6 (2) KWG to the economically important function of granting credit. The operation of banking business is therefore closely linked to the granting of a banking license , which also enables permanent supervision of the credit system.
Securities transactions
Finance commission business
Financial commission business is the acquisition and sale of financial instruments (e.g. shares or bonds ) in one's own name for the account of a third party.
Custody business
The securities custody business is the custody and management of securities for others.
Investment business
The investment business can also be operated as a banking business by universal banks ( Section 1 Paragraph 1, 1a, 4 and 5 KWG ), but also as an investment business by capital management companies specializing in this area in accordance with Section 1 Paragraph 19 No. 24 KAGB . These capital management companies and the credit institutions operating the investment business are colloquially summarized as investment banks . According to Section 1 of the KAGB, collective asset management includes portfolio management , risk management , administrative activities, the sale of own investment units and AIF activities ( alternative investment funds ; AIF) in connection with the AIF's assets . In addition, they may in particular provide financial portfolio management and investment advice on financial instruments (Section 1 (11) KWG) as well as conduct securities custody business.
The investment transactions carried out by capital management companies are the transactions finally listed in Section 20 of the KAGB . The main tasks in the investment business consist of investment advice , the acceptance of securities orders , their forwarding to the stock exchange and the management of securities accounts . Capital management companies are regarded as specialist banks because they are not allowed to conduct essential banking business.
Issuing business
Issuing business is the assumption of financial instruments at one's own risk for placement ( issue ) or the assumption of equivalent guarantees (see syndicated business or underwriter ).
Credit transactions
Credit transactions are all transactions associated with a credit risk .
Cash Loans / Acceptance Loans
This includes all types of credit in the main groups money lending and credit lending (see also Loans , Loan Agreements , Lenders ).
Guarantee business
Guarantee business is the assumption of sureties , guarantees and other warranties for others.
Discount business
The discount business was the purchase of bills of exchange and checks ; since December 1998 it has no longer been operated by credit institutions.
Payment transactions
Giro business
Current account business is the implementation of cashless payment transactions and billing transactions .
E-money business
E-money business is the issuing and administration of electronic money (e.g. cash cards , credit cards ) in accordance with Section 1 (2) sentence 2 ZAG .
Other business
Deposit business
The deposit business is the acceptance of third-party funds as deposits or other repayable funds from the public, provided the repayment claim is not evidenced in bearer or order bonds , regardless of whether interest is paid (e.g. savings balances , sight deposits , time deposits or savings bonds ).
Loan acquisition business
Loan acquisition is the undertaking to acquire loan receivables before they are due .
Banking transactions under time aspects
Looking at banking from a time perspective, four types can be distinguished. The commitment transaction is closed today.
- Cash transaction
- Both fulfillment transactions must be carried out no later than two bank working days after the conclusion of the transaction.
- easy credit business
- The lender fulfills by paying out immediately, the borrower at a future point in time (when due ).
- Forward deal
- Both fulfillment transactions take place on the same day - the due date - in the future.
- Forward loan business or credit investment business
- The fulfillment transactions take place on different bank working days in the future.
International
The Austrian Banking Act (BWG) of January 1994, like the German KWG for credit institutions, determines who is authorized to conduct banking business (Section 1 BWG). It lists 20 banking transactions, the commercial operation of which automatically requires a license from the Financial Market Authority FMA in accordance with Section 4 (1) BWG. The Swiss Banking Act (BankG) of November 1934 does not recognize the irrefutable assumption that someone who conducts banking business is automatically a credit institution. Rather, it lists in Art. 1 BankG the banks, private bankers (sole proprietorships, general and limited partnerships) and savings banks that are subject to the law and which require approval from the FINMA supervisory authority in accordance with Art. 3 BankG .
literature
- Rolf Abicht, Banking and Banking, in: Studienwerk der Bankakademie , Bankbetriebslehre Part 4, Chapter 3.1, November 2002
Web links
Individual evidence
- ↑ Government justification for the draft law on the credit system of 25 May 1959 BTDrucks 3/1114 S. 27
- ↑ BVerwG, judgment of September 22, 2004, Az .: BVerwG 6 C 29.03 = BVerwGE 122, 29, 48
- ↑ BVerwG, judgment of April 22, 2009, Az .: 8 C 2.09 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ BVerwG, judgment of 14 July 2003, Az .: BVerwG 6 C 10.03
- ↑ Claus-Wilhelm Canaris / Mathias Habersack / Carsten Schäfter, Bank Contract Law 1: Organization of the Credit System and Bank-Customer Relationship , 2016, p. 18
