Issuing bank guarantees to companies. Bank guarantee insurance Bank guarantee issued by an insurance company

A bank guarantee, as a financial instrument of domestic and international business relations, can be insured. In this case, the possible costs of covering the guarantor's risks are borne by the insurance company. Bank guarantees are a necessary condition for large transactions. A bank guarantee transaction is valid between the guarantor (bank or credit institution), the principal (debtor) and the beneficiary (creditor) under the main agreement.

Bank guarantee insurance is a form of protecting the effectiveness of the guarantee itself in the event of possible risks. A bank guarantee insurance agreement can be considered as a special type of surety agreement, in which the bank and the principal are the debtor, the insurance company is the guarantor, and the beneficiary of the guarantee is the creditor.

Types of insured risks

There are several types of bank guarantee insurance issued for the following purposes:

• redemption of bonds and securities;
• short-term and long-term loans;
• fulfillment of lease obligations;
• payment guarantees for leasing equipment and machinery;
• payment for export of equipment;
• loans for the purchase of cars.

A bank guarantee insurance contract is concluded for a period from several months to 30 years. Insurance protects the interests of the guarantor bank and ensures that it carries out transactions with minimal losses.

Benefits of guarantee insurance

What advantages does it have? insurance bank guarantee?

• The bank shifts its responsibility to the insurer;
• BG insurance is a guarantee of the unchanged value of the insured securities;
• the liquidity of insured securities increases;
• the insurance premium ranges from 0.25 to 2.0% of the guarantee amount.

Only large companies can obtain bank guarantee insurance. In any case, the bank first carefully checks the candidate’s credit history and financial reporting documents and only then makes a decision. If insurance is used, the bank guarantee becomes more effective; it saves both the bank itself and the principal from loss of funds. The risk is minimized by the insurance company.

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Bank guarantee, contract

A bank's letter of guarantee is one of the most popular ways to secure financial obligations and instruments of financial influence.

Accounting for bank guarantees

The accounting for independent guarantees is different for principals, guarantors and creditors. Recommendations for accounting and accounting entries for transactions with guarantees of credit institutions for each party are given in this article.

Bank guarantee as a form of loan

Bank guarantees refer to credit products offered by banks to customers. Compared to loans, they are cheaper and are in great demand. Registration of bank guarantees differs little from the procedure for concluding loan agreements.

Currently, a bank guarantee is one of the ways to secure obligations. According to Art. 368 of the Civil Code of the Russian Federation, by virtue of a bank guarantee, a bank, other credit institution or insurance organization (guarantor) gives, at the request of another person (principal), a written obligation to pay the principal’s creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor, a sum of money upon submission by the beneficiary of a written request for it payment The bank guarantee ensures the proper fulfillment by the principal of his obligation to the beneficiary (principal obligation). For issuing a bank guarantee, the principal pays a fee to the guarantor.
The obligation of the guarantor to the beneficiary provided for by a bank guarantee does not depend in the relations between them on the main obligation to secure the fulfillment of which it was issued, even if the guarantee contains a reference to this obligation. A bank guarantee cannot be revoked by the guarantor unless otherwise provided in it. The right of claim against the guarantor belonging to the beneficiary under a bank guarantee cannot be transferred to another person, unless otherwise provided in the guarantee. The bank guarantee comes into force from the date of its issue, unless otherwise provided in the guarantee.
Submitting a claim for a bank guarantee. The beneficiary's request for payment of a sum of money under a bank guarantee must be submitted to the guarantor in writing, accompanied by the documents specified in the guarantee. In the request or in an appendix to it, the beneficiary must indicate what the principal’s violation of the main obligation for which the guarantee was issued is. The beneficiary's claim must be submitted to the guarantor before the end of the period specified in the guarantee for which it was issued.
Rights and obligations of the guarantor. As for the responsibilities of the guarantor when considering the beneficiary’s claim, the Civil Code of the Russian Federation provides for the following. Upon receipt of the beneficiary's demand, the guarantor must immediately notify the principal and provide him with copies of the demand with all documents relating to it. The guarantor must review the beneficiary's claim and its accompanying documents within a reasonable time and use reasonable care to determine whether the claim and its accompanying documents comply with the terms of the guarantee. The guarantor refuses to satisfy the beneficiary's claim if this claim or the documents attached to it do not comply with the terms of the guarantee or are presented to the guarantor after the end of the period specified in the guarantee. The guarantor must immediately notify the beneficiary of the refusal to satisfy his claim. If the guarantor, before satisfying the beneficiary's claim, becomes aware that the main obligation secured by the bank guarantee has already been fulfilled in full or in the relevant part, has terminated for other reasons or is invalid, he must immediately notify the beneficiary and the principal about this. The beneficiary's repeated demand received by the guarantor after such notification is subject to satisfaction by the guarantor.
The obligation of the guarantor to the beneficiary provided for by a bank guarantee is limited to payment of the amount for which the guarantee was issued. The liability of the guarantor to the beneficiary for the failure or improper performance by the guarantor of the obligation under the guarantee is not limited to the amount for which the guarantee was issued, unless otherwise provided in the guarantee. The guarantor's obligation to the beneficiary under the guarantee terminates:
- payment to the beneficiary of the amount for which the guarantee was issued;
- the end of the period specified in the guarantee for which it was issued;
- due to the beneficiary’s refusal of his rights under the guarantee and its return to the guarantor;
- due to the beneficiary’s waiver of his rights under the guarantee by means of a written statement releasing the guarantor from his obligations.
The guarantor, who becomes aware of the termination of the guarantee, must immediately notify the principal of this.
The right of the guarantor to demand from the principal, by way of recourse, compensation for the amounts paid to the beneficiary under the bank guarantee, is determined by the agreement of the guarantor with the principal, in pursuance of which the guarantee was issued. The guarantor has no right to demand from the principal compensation for amounts paid to the beneficiary not in accordance with the terms of the guarantee or for violation of the guarantor’s obligation to the beneficiary, unless otherwise provided by the agreement of the guarantor with the principal.

Judges' explanations

When studying the issue of issuing a bank guarantee, including, one cannot help but refer to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 23, 2012 N 14 “On certain issues in the practice of resolving disputes related to challenging bank guarantees.” Thus, when considering cases of challenging bank guarantees, courts need to keep the following in mind.
Indication of all terms of the obligation. The Civil Code of the Russian Federation establishes that the obligation of the guarantor to the beneficiary provided for by a bank guarantee does not depend in the relations between them on the main obligation to ensure the fulfillment of which it was issued, even if the guarantee contains a reference to this obligation. In this regard, courts should take into account that failure to indicate in a bank guarantee all the conditions of the obligation secured by the guarantee is not grounds for challenging it. Provision of paragraph 1 of Art. 369 of the Civil Code of the Russian Federation on the indication of a secured obligation in a bank guarantee should be considered complied with even if from the contents of the guarantee it is possible to establish who is the debtor under the secured obligation, the amount payable by the guarantor is indicated when the beneficiary presents a corresponding claim, and a reference to the agreement is contained, which is the basis for the emergence of obligations of the principal to the beneficiary, or the nature of the obligation secured by the guarantee is specified.
Bank guarantee period. In addition, the SAC points out that, in accordance with paragraphs. 2 p. 1 art. 378 of the Civil Code of the Russian Federation, the guarantor’s obligation to the beneficiary is terminated by the end of the period specified in the guarantee for which it was issued. Meanwhile, the Civil Code of the Russian Federation, regulating the content of a bank guarantee, does not require that the period for which it is issued be equal to or exceed the period for fulfilling the obligation that is secured by the guarantee. Judges, when considering disputes over bank guarantees, do not have the right to assess the validity of the relevant transactions only from the point of view of the presence or absence of a security function, since when issuing and accepting a guarantee, the guarantor and the beneficiary act of their own will and in their own interests, they are free to establish their civil rights and obligations (clause 2 of article 1, article 156, 421 of the Civil Code of the Russian Federation). A bank guarantee issued for a shorter period than the period for fulfilling the secured obligation cannot be invalidated on the above grounds, since it secures other obligations that may arise between the principal and the beneficiary before the deadline for fulfilling the main obligation (for example, in connection with a unilateral refusal to perform the contract, termination of the contract, which entails the creditor's right to demand compensation for losses, return of the advance payment, etc.).
Written form of commitment. The Supreme Arbitration Court also notes that, when considering whether the party that issued the bank guarantee complies with the legal requirement for the written form of the guarantor's obligation, courts need to take into account the following. The Civil Code of the Russian Federation does not prohibit the execution of a unilateral transaction by sending the debtor to the creditor under an obligation arising from a unilateral transaction the corresponding document by means of postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from the person who made the unilateral transaction (Article 156, paragraph 1, article 160, paragraph 2, article 434 of the Civil Code of the Russian Federation). Consequently, the requirements of Art. 368 of the Civil Code of the Russian Federation on the written form of a bank guarantee are considered to be complied with, for example, when the guarantee is issued in the form of an electronic message using the SWIFT telecommunication system. In addition, courts must take into account that even failure to comply with the simple written form of a bank guarantee does not entail its invalidity; interested parties has the right to provide written and other evidence confirming the transaction and its terms (clause 1 of Article 162 of the Civil Code of the Russian Federation).
Signature of the chief accountant on the bank guarantee. In accordance with paragraph. 3 p. 3 art. 7 of the Federal Law of November 21, 1996 N 129-FZ “On Accounting” (repeales on January 1, 2013), without the signature of the chief accountant, monetary and settlement documents, financial and credit obligations are considered invalid and should not be accepted for execution. At the same time, courts should take into account that, by virtue of paragraph 1 of Art. 160 of the Civil Code of the Russian Federation, a transaction in writing must be completed by drawing up a document expressing its content and signed by the person or persons entering into the transaction, or persons duly authorized by them. According to Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law, other legal acts and constituent documents. Chief accountant legal entity is not a body of a legal entity, therefore, the absence of the signature of the chief accountant on documents drawn up by a legal entity does not indicate the absence of the will of the legal entity to complete the relevant transaction. In connection with the above, the absence of a signature of the chief accountant of the legal entity that issued the bank guarantee is not grounds for declaring it invalid (paragraph 2, paragraph 2, article 3 of the Civil Code of the Russian Federation).

Upcoming innovations

The above rules are established by current legislation. However, there are proposals to make changes that are provided for by draft federal law N 47538-6 "On amendments to parts one, two, three and four of the Civil Code of the Russian Federation, as well as to certain legislative acts Russian Federation". Thus, the term “bank guarantee” itself is proposed to be replaced with the concept of “independent guarantee”. The following points are changed in content. Under an independent guarantee, the guarantor assumes, at the request of another person (principal), the obligation to pay a certain amount of money to the third party specified by him (the beneficiary) in accordance with the terms of the obligation given by the guarantor, regardless of the validity of the obligation guaranteed. guarantee and verify the authenticity of its source in the manner prescribed by law, customs or agreement of the guarantor with the beneficiary.
Independent guarantees may be issued by commercial organizations. Please note, by any commercial organizations, and not, as previously proposed, only by banks or insurance organizations. The obligations of another person who issued an independent guarantee are subject to the rules on the surety agreement. The guarantee must indicate: the date of issue, the principal, the beneficiary, the guarantor, the main obligation, the performance of which is secured by the guarantee, the amount of money to be paid or the procedure for determining it, the validity period of the guarantee and the circumstances upon the occurrence of which the amount of the guarantee must be paid. The guarantee may contain a condition on reducing or increasing the amount of the guarantee upon the occurrence of a certain period or event.
At the time of preparing the issue for publication, the bill under consideration was adopted by the State Duma of the Russian Federation in the first reading (04/27/2012).

Features of issuing bank guarantees by insurance organizations

In accordance with Art. 141 of the Federal Law of November 27, 2010 N 311-FZ "On customs regulation in the Russian Federation" customs authorities as security for payment customs duties, taxes accept bank guarantees issued by banks, other credit organizations or insurance organizations included in the register of banks, other credit organizations and insurance organizations that have the right to issue bank guarantees for the payment of customs duties and taxes, which is maintained by the federal executive body authorized in the field of customs affairs.
The current Register of banks, other credit organizations and insurance organizations that have the right to issue bank guarantees for the payment of customs duties and taxes, approved by Order of the Federal Customs Service of Russia dated May 31, 2012 N 1065, includes 193 banks with branches and 13 insurance companies, 11 of which are Moscow insurance companies organizations, one from St. Petersburg and another from the Altai Republic.
Order of the Ministry of Finance of Russia dated October 10, 2011 N 126n "On establishing the maximum amount of all simultaneously valid bank guarantees issued by one bank or one other credit organization, one insurance organization, for the acceptance of bank guarantees by customs authorities in order to ensure the payment of customs duties and taxes" established maximum amount all issued bank guarantees. The document came into force on January 5, 2012. This rule applies to insurance organizations that meet the conditions provided for inclusion in the Register, such as:
- availability of a valid permanent license from the federal executive body exercising control and supervision functions in the field of insurance activities (insurance business), for the right to carry out insurance activities;
- presence of a registered authorized capital in the amount of at least 500 million rubles;
- carrying out activities as an insurance organization for at least five years;
- no losses during the last calendar year;
- availability of free assets as of the last reporting date in an amount not less than the standard amount;
- availability of net assets at the end of the last reporting period, the value of which must be no less than the amount of the paid authorized capital;
- no debt on customs duties.
Only if the specified conditions are met, an insurance organization can apply for inclusion in the Register. It has been established that the maximum amount of all simultaneously valid bank guarantees issued by one insurance organization is equal to 170 million rubles, and the maximum amount of one bank guarantee is 35 million rubles.

– This is one of the types of regular insurance. Conditions that provide insurance guarantees for the fulfillment of various financial obligations arising as a result of a transaction between an investor and a borrower.

Bank guarantee insurance can be called a special type of guarantee, which guarantees protection against financial risks.

Surety is a special area of ​​business activity: both insurers and banks can operate in it. The Civil Code of the Russian Federation separates surety agreements and bank guarantee agreements.

In the case of a surety, the guarantor undertakes to the creditor for the fulfillment of his obligations partially or fully. If an agreement on bank guarantees is concluded, then the guarantor, at the request of the principal, gives an undertaking in writing that he will pay the creditor a certain amount of money at the moment the beneficiary submits a written request for this.

Issued by both banks and other credit institutions. Literally next to financial guarantee insurance is the mortgage insurance service. The insurer is liable to the lender who issued the loan secured by a mortgage on the property in the event of non-repayment of the loan or inability to recover losses.

The emergence of many types of bank guarantee insurance allows you to provide insurance protection for many financial transactions. Often small investors do not have the in-depth knowledge to conduct market analysis. But at the same time they are interested in investment investments with minimal risk.

Today there are types of bank guarantee insurance:

• Insurance of legal entities and individuals.
• Credit insurance, both for short-term transactions and long-term investments
• Rental payment insurance
• Mortgage bond insurance
• Insurance of bonds, as well as some other securities
• Car Loan Insurance
• Insurance of leasing payments
• By duration: short-term, medium-term and long-term
• medium-term (from eight to thirty years), short-term (up to eight years).

There are also concepts of secured and unsecured bank guarantee. If there is any liquid collateral as security, the bank guarantee is called secured. Any property of the principal is accepted as collateral: equipment and goods in circulation, securities, real estate, and others.

An unsecured bank guarantee implies the absence of collateral and is issued on the basis of a written obligation of the guarantor bank.

A feature of this type of insurance is to ensure break-even operations, and with minimal losses. Therefore, insurers very carefully consider not only the candidacies of the policyholders themselves, but also the objects to be insured using a bank guarantee. The investor's insurable interest lies, first of all, in transferring the risk of deposits to the insurance company. It is also important that the insurance company ensures price stability of the insured bonds, increases the liquidity of the (insured) securities for their subsequent sale on the secondary market, moreover, before the redemption deadline.

This insurance ensures a fairly good sale of bonds, significantly reducing issue costs. By doing this by reducing the amount of income paid out. An insured bond has a higher degree of safety, but with a lower yield, it may be less common. The amount under the contract of such insurance is set within the total amount of the debt, as well as the interest rate on it. As a rule, tariff rates vary between 0.25 and 2%. The lending rate depends on the type of bond, the creditworthiness of the issuer, as well as various risk factors.

"Insurance in our time is rather a necessity, and not at all a luxury. After all, this is the only way banks or investors can reduce their risks. This is especially true for beginning entrepreneurs and inexperienced investors who do not have in-depth knowledge on this topic. Maximum profit and minimum risks are what potential investors dream about". Kopylov E.F., financial analyst.

Just a few years ago, a variety of methods were used to participate in tenders and provide financial support for contracts. Thus, firm guarantees were actively used. This method was popular with small companies that did not have enough funds and collateral to secure a contract. They enlisted the support of large organizations, which acted as guarantors.

However, this mechanism was canceled due to the fact that the market was simply oversaturated with false guarantee documents, which were very difficult to verify. As a result, there was simply no one to collect the penalty from the customers. Got lost huge sums budget funds.

The mechanism such as a bank guarantee has also undergone significant changes. Unlike a guarantee, this method of security has not disappeared; moreover, it is now the most important. However, the scheme has changed significantly in order to minimize cases of fraud and forgery in this area. Previously, a wide variety of organizations could issue a bank guarantee. Was very common insurance company bank guarantee. Everything is logical, since the warranty obligation is insurance for the customer, which comes into force when certain conditions occur. Such a document was almost identical to a bank guarantee, the only difference being that it could be obtained much easier from insurance companies. In addition, they offered clients and favorable conditions cooperation. This is not surprising, because insurance companies always assess risks as accurately as possible. Calculates the amounts of possible insurance payments - their direct work, in contrast to banking structures.

This option significantly reduced costs for contract executors; in addition, they did not need to spend a lot of time preparing documents, and the consideration of applications, as a rule, was very fast. Bank guarantee from an insurance company was a very popular service. However, with the entry into force of Federal Law 44, this option for guaranteeing transactions was canceled. Since for many insurance companies this service was almost the main source of income, many organizations simply ceased to exist.

Bank guarantee of an insurance company is an outdated mechanism.

However, such a ban was not introduced by chance. This cancellation occurred due to the fact that very often, according to customer requirements insurance amounts were not paid. The state was losing significant budget funds. This is because a number of unscrupulous insurance companies worked in this area. They offered favorable terms, but did not have the funds to reimburse customers if payment terms were met. Moreover, the guarantee obligations were not entered into the register, their execution was carried out with violations, and they had no legal force.

As a result, under Federal Law 44, issue a bank guarantee insurance company today is impossible - this is an outdated mechanism. According to the Federal Law No. 44, now only banks can issue such a document, and even then not all of them, but only those financial institutions that are included in a special list of the Ministry of Finance.

Accordingly, the requirements for applicants have now become much stricter. Sometimes to obtain a bank guarantee for a large contract especially, it can take months. This, of course, cannot be satisfied in any way in situations where an application for a tender must be submitted as quickly as possible. In this case, the optimal solution would be assistance from brokerage structures . Competent specialists have extensive connections in the banking industry, have extensive experience in preparing documents and can significantly speed up the process. The entire procedure for obtaining a warranty can take only 3-5 days.

As soon as today they don’t call a bank guarantee – insurance, guarantee, loan. Indeed, this financial instrument has much in common with those listed. For the customer, this document is an insurance policy. For the bank it is a guarantee, and for the executor of the contract it is a kind of loan.

Why an insurance policy?

It’s simple, with the help of a bank guarantee, any customer is insured against misuse of funds by the contractor, as well as poor performance of the contract. Previously, if the terms of the transaction were not observed by the contractor, then the customer could not immediately compensate for his losses. To do this, he needed to go to court with a corresponding statement of claim. As you know, court hearings always take a lot of time and resources. Proceedings can last for months and even years. At the same time, until a decision is made, it is not known which side of the conflict the court will take. Today everything has become much simpler. With the help of a bank guarantee, the customer can return the money spent within a few days. A financial institution is a kind of insurance company for the customer, and bank guarantee- a policy that comes into force if the terms of the contract are not fulfilled.

Why guarantee?

In transactions with bank guarantees, a third party is always involved, and it has nothing to do with fulfilling the terms of the contract. The bank is the guarantor of its client, which undertakes to pay money to the customer if the terms of the contract are violated. To get a financial institution as a guarantor, you must fulfill very serious requirements. The performing company must have a crystal clear reputation, a positive financial balance, material resources, and also have no credit obligations. All these factors are carefully checked by banks. They need to provide dozens of different documents for consideration. These are extracts from the accounting department, tax office, provide all legal information about the company, as well as its owners. But even if you collect all the necessary documentation, no one guarantees that the bank will agree to become a guarantor. A financial institution may refuse, but they are not at all obliged to explain why they did this.
It is noteworthy that previously an insurance company could also deal issuance of a bank guarantee as security , today only banks can do this. Moreover, not all of them, but only those that are approved by the Ministry of Finance and entered into the appropriate database. In total, there are now more than 300 of them in Russia. It seems that the choice is quite large. In fact, for a huge country where tens of thousands of guarantees are issued annually, this is not much. In addition, of these 300 banks, not all issue guarantees. According to the law, they can do this, but they do not use their right. Therefore, demand exceeds supply, and banks set their own rules. If you want to get us as guarantors, please, fulfill our requirements, and we will think about whether to agree or not.

Why loan?

As in the credit mechanism, the bank takes its interest for the financial security of the contract. Interest rate however, it may be different depending on the currency used, the terms of the contract and its terms. The maximum rate is 10% of the bank guarantee amount. A loan under a bank guarantee can also be paid, not to the client himself, but to the customer, if a justified request is received. After all, in this case the bank is insurance company, and his bank guarantee ensures payment of funds.
If you want to ask question about bank guarantee services And, contact us at FinGarantService . We will be happy to help you.