Financial Ombudsman: The Legal Status, Competence, Correlation with Procedural Law

The subject of the study is norms of the Federal Law on the Commissioner for the Rights of Consumers of Financial Services. In the course of the research, the following tasks have been solved: the place of the Commissioner in the system of jurisdictional bodies of the Russian Federation has been determined; the competence of the Commissioner has been compared with the competence of similar institutions abroad; problems of correlation of the normative regulation of the Commissioner and civil procedural legislation have been revealed. The study has been conducted on the basis of comparative, systematic, concrete historical, analytical and other methods. Based on the analysis of scientific provisions, the norms of the Federal Law on the Commissioner, the civil procedure law and the practice of their application, the following main conclusions have been formulated. (1) The Commissioner does not belong to the system of state authorities, it is a body of public (not state) jurisdiction, but is vested with broad powers: dispute resolution and law-making (determines the amount of payment for submitting an application to the Commissioner, the procedure for concluding agreement by the parties to the dispute). An entity endowed with such broad powers, in the absence of a proper mechanism for its control by society, is unlikely to be an effective tool for achieving the goals stated during its creation. (2) The author criticises the narrow competence of the financial representative in comparison with similar institutions abroad. The powers of such entities in other countries include comprehensive assistance, support for citizens and small businesses in matters of interaction with financial organisations. Financial ombudsmen abroad are not a substitute for judicial procedure, but play the role of an alternative to justice, appeal to which is possible, but not necessary. Therefore, the narrow competence of the Commissioner, on the one hand, and the fact that the procedure before the Commissioner is binding, on the other, against the background of other states are not easily explained. (3) Neither for a consumer, nor for a financial organisation, the Law does not establish the procedure for revising the agreement concluded during the procedure before the Commissioner. At the same time, it is obvious that such a need may arise for both a consumer and a financial organisation. The absence of a mechanism for correcting an error in the agreement approved by the Commissioner is a gap in the law, which is its essential shortcoming. (4) The legislator has provided for different proceedings of judicial protection of the rights of a consumer and a financial organisation: different terms of application to the court, different procedures for consideration of the application, different roles in the process, different possibilities for challenging the acts of the Commissioner. The author comes to the conclusion that these differences are not necessary, this legislative flaw will inevitably result in an unstable judicial practice, the victims of which will be citizens and organisations.

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