LETTER OF NATIONAL BANK OF THE REPUBLIC OF KAZAKHSTAN

of December 3, 2013 No. 29208/225/2980-YuL/N

National Bank of the Republic of Kazakhstan, having considered your letter concerning execution of payment documents and requests on availability and bank account numbers of the client in case of discrepancy of the name of the client, reports the following.

On the first question:

According to Item 22 of the Instruction for registration, use and execution of payment orders, payment requirements orders, collection orders approved by the resolution of Board of National Bank of the Republic of Kazakhstan of April 25, 2000 No. 179 (further - the Instruction), the bank receiver and bank of the beneficiary refuse the acceptance of the payment document in case of discrepancy of details of the client (individual identification code (further - IIK), IIN (BIN)) to the details specified in the payment document and also discrepancies of the name of the sender of money to the name of the client specified in the payment document.

Thus, discrepancy of the name of the sender of money to its name specified in the payment document is one of the refusal bases in the acceptance of the payment document.

We note that the requests of banks and state bodies or officials about availability and bank account numbers of clients directed according to the Law of the Republic of Kazakhstan "About banks and banking activity in the Republic of Kazakhstan" (further the Law on banks), are not payment documents. Therefore, the regulation of Item 22 of the Instruction is not applicable by consideration of the specified requests.

At the same time, the legislation of the Republic of Kazakhstan does not provide the refusal bases performed by such requests, in particular, in case of discrepancy availability in the name of the client.

At the same time, data of the client, including, its name are introduced by bank in the client database in case of the conclusion of bank account agreement based on its documents of title. In this regard, we find possible for the purpose of exception of risks of disclosure of bank secrecy return without execution of requests about the availability and bank account numbers containing other name of the client, significantly different from the name of the client in client base of bank.

At the same time, we consider that spelling (capital letters or the Kazakh symbols) of the name of the client which does not influence process of identification of the client in general in case of compliance of other its details (IIN (BIN), birth date) cannot be considered by the basis for refusal performed by the above-stated requests.

On the second question:

According to Item 5 of article 50 of the Law on banks of the certificate of availability and bank account numbers are issued to bank in relation to which the account holder (accounts) is borrower, the guarantor, the guarantor, the leasing recipient or the pledger, based on the written request signed by the chairman of the board of bank or its deputies on condition of submission of the documents confirming receipt of the credit which list and procedure for representation are established in regulatory legal acts of authorized body.

According to Item 1 of article 13 of the Law of the Republic of Kazakhstan "About payments and money transfers", the payment requirement order which is not requiring the acceptance of the sender of money is applied by banks to debt collection from the borrower, the guarantor in case of availability of overdue debt of the borrower on loan according to the signed agreement of bank loan, the agreement on opening of credit line or other document confirming the fact of loan transaction or issue of guarantee and shown in bank of the sender of money with appendix to it of the documents containing the consent of the sender of money for money withdrawal without acceptance from its bank account.

Thus, submission of the agreement confirming the fact of provision of loan is provided for the purpose of confirmation of the fact of receipt of loan by required person or confirmation of the basis for write-off of money without acceptance from the bank account of this person - the borrower.

At the same time, the agreement containing other name of the client significantly different from the name of the client specified in request about availability and bank account numbers or the payment requirement order which is not requiring the acceptance does not grant the right to the data which are bank secrecy, or write-off of money without acceptance from the bank account of the client as unambiguously does not confirm the fact of receipt of loan by this person.

In this regard, in case of compliance of the name of the sender of money specified in request about availability and bank account numbers or the payment requirement order which is not requiring the acceptance with its name in the client database of bank, but not compliance with the name of the client specified in the agreement of bank loan, this request and the payment requirement order can be performed only in the presence of the documents which are unambiguously confirming the fact of change of the name by this borrower.

Otherwise, the provided request is subject to return without execution, and the payment requirement order to the direction to the sender of money for its acceptance.

On the third question:

According to the subitem 1) of Item 2 of article 32 of the Law of the Republic of Kazakhstan "About enforcement proceeding and the status of legal executives" (further - the Law on enforcement proceeding), property attachment of the debtor, including the money and securities which are at it or at other physical persons or legal entities (including in the banks and the organizations performing separate types of banking activities and also in insurance companies) is one of measures for ensuring execution of executive documents.

According to Item 29 of Rules of opening, maintaining and closing of bank accounts of clients in the banks of the Republic of Kazakhstan approved by the resolution of Board of National Bank of the Republic of Kazakhstan of June 2, 2000 No. 266, in case of receipt in bank of decisions of authorized bodies on suspension of account transactions on the bank account, decisions (resolutions) of authorized bodies on seizure of the money of the client which is on such account, the bank performs them according to the procedure and the cases provided by the Civil code, the Tax code and the Law of the Republic of Kazakhstan of August 31, 1995 "About banks and banking activity in the Republic of Kazakhstan".

Thus, the legislation of the Republic of Kazakhstan provides execution by bank of the decision on seizure of the money of the client which is on its bank account within ensuring execution of executive documents. At the same time, the refusal performed by the specified decisions, in case of discrepancy availability with the name of the client in client base of bank is not provided in the name of the client specified in the decision.

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