Bank Secrecy: a Look an Modern Trends from Theoretical Standpoint

Pravo. Zhurnal Vysshey shkoly ekonomiki. 2015. No. 4. P. 140–146.

Alexander Vishnevskiy

Bank secrecy has long been recognized as one of the fundamental legal constructions in banker-customerrelationships. Recent developments in legal regulation of it show that bank secrecy is subject to more andmore limitations, i.e. more and more authorized bodies may have access to the relevant information and,moreover, in some cases the banks are obliged to inform the authorities about clients’ transactions evenwithout any request. Many scholars consider these developments as a limitation of bank secrecy whicheventually may lead to its “death”. The author argues that such an assessment is based on a one-sided approachto bank secrecy as a fundamental right of the bank’s client. As a general rule, bank secrecy of thisnature is understood to be one of the components of an individual’s right to privacy, or — in the case of alegal entity — as one of the fundamentals of the legal status of a legal entity. Although such an approach isacceptable within a positivistic view on the legal theory, the author argues that a broader view on the matteris justified when the legal nature of bank secrecy is understood as a legal construction aimed at finding anoptimal balance between private and public interests involved in the confidential sphere of banker-customerrelationships. As a result the latest developments may be seen as attempts to find a new balance, thebalance between private and public law aspects of bank secrecy which will be more adequate taking intoconsideration the realities of the contemporary banking and financial environment.

Keywords: public interest, клиент банка, банковское право, публичный интерес, bank client, banking law, банковская тайна, bank secrecy, private interest, частный интерес