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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of November 6, 2008 No. P-299/2008

About effective period of the warrant for receipt of money from contribution (deposit) of the physical person opened in bank on which pension (benefit) is transferred

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Miklashevich P. P., the vice-chairman Maryskin A. V., Boyko T. S. judges., Danilyuka of Page E., Izotko V. P., Kozyrevoy L.G., Podgrusha V. V., Ryabtseva L.M., Sergeyeva O. G., Tikovenko A. G., Chigrinova S. P., Shuklin V. Z. considered the appeal of open joint stock company "Belarusbank savings bank about check of provisions of the regulatory legal act establishing year of action of the warrant for receipt of money from contribution (deposit) of the physical person opened in bank on which bodies for work and social protection transfer pensions (benefit).

Having analyzed provisions of the Constitution of the Republic of Belarus, the Civil code of the Republic of Belarus (further - group of companies), the Bank code of the Republic of Belarus (further - BQ), the Law of the Republic of Belarus "About provision of pensions" (further - the Law), other regulatory legal acts of the Republic of Belarus regulating questions of provision of pensions, the Constitutional Court established.

According to article 47 of the Constitution to citizens of the Republic of Belarus the right to social insurance in old age, in case of disease is guaranteed, to disability, disabilities, losses of the supporter and in other cases provided by the Law.

In the Law the procedure for realization by citizens of constitutional right on receipt of retirement, social pensions and other payments by determination of sources of pension payment, the organizations where at the choice of pensioners pensions, and other conditions of their payment are transferred is established.

So, it is provided in article 8 of the Law that payment of the work pensions granted according to the Law is performed from fund of social protection of the population of the Ministry of Labour and Social Protection of the Republic of Belarus. Payment of the social pensions provided by the Law is performed at the expense of means of the republican budget.

According to subitems 6.35 and 6.49 of Item 6 of the Regulations on the Ministry of Labour and Social Protection of the Republic of Belarus approved by the resolution of Council of Ministers of the Republic of Belarus of October 31, 2001 No. 1589, are assigned to the specified Ministry including the organization of work to destination and pension payment, benefits and other social payments; control of implementation of the legislation on social protection of the population, etc.

According to part four of article 83 of the Law pension payment is made at the choice of pensioners through the organizations of mail service, banks, the organizations performing activities for delivery of pensions.

Features of pension payment (benefit) through banks are established, in particular, by Regulations on payment procedure of pensions (benefits) by transfer to accounts of physical persons in divisions of open joint stock company "Belarusbank savings bank, the approved resolution of the Ministry of Labour and Social Protection of the Republic of Belarus of October 3, 2002 No. 129 (further - the Provision). It is provided in item 4 of the Provision that transfer of pension (benefit) is performed by body for work and social protection based on the statement of the pensioner (the receiver of benefit) for transfer of its pension (benefit); the statement is valid within three years from the date of its giving in body for work and social protection and renews the pensioner (the receiver of benefit) not later than one month before the expiration of its action.

Pension payment (benefits) by transfer to the account of physical person has essential differences from other methods of its obtaining. In this case the citizen independently signs the agreement of the corresponding bank deposit (deposit) with bank. Condition of such contribution is storage of money, the order them and receipt of percent. Replenishment of contribution is made by transfer into the account of the investor both pension, and the amounts which arrived in contribution by cash deposit of money and (or) via bank transfer.

The specified legal relationship connected with the conclusion of bank deposit agreement (deposit) and opening of the account of physical person where the money received by the citizen legally and also with the subsequent ownership of them arrives, use and the order testify to availability at the citizen of the property right to this money and are regulated by the civil and bank law of the Republic of Belarus.

So, the obligation of bank, being vkladopoluchatel is provided in Article 773 of Civil Code, articles 181 and 185 BQ respectively, to accept from the investor money in contribution (deposit), to ensure their safety, to pay interests on conditions and according to the procedure, defined by the agreement, and in case of termination of the contract - to return them to the investor. Money has the depersonalized character, and the investor has the right to dispose of them: give instructions to bank about money transfer from its account on other bank accounts and (or) to other persons; use other types of banking services according to the legislation of the Republic of Belarus and bank deposit agreement (deposit). According to Article of 189 BQ the money which arrived into the account of the investor from other persons can be enlisted in contribution (deposit) if other is not provided by bank deposit agreement (deposit).

Similar approaches found reflection in the Provision. It is provided in it that issue of money from accounts of physical persons is made according to the bank law (Item 13); on the pension amounts (benefits) credited into accounts of physical persons in divisions of bank, to pensioners (receivers of benefits) the income in type of percent or in other form offered by bank according to the bank law is charged (Item 3).

Protection of the property right of the citizen to the money placed in contribution (deposit) will be approved with article 44 of the Constitution providing that the state guarantees everyone the property right; the owner has the right to own, use and dispose of property as solely, and together with other persons; the property acquired by legal method is protected by the state; the state encourages and protects savings of citizens, creates guarantees of return of deposits.

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