Měnové vztahy a jejich právní problematika

In any society where commodity production exists, money exists as its consequence. Money must serve as a standard, i.e. as a rate at which one commodity can be exchanged for another. Originally gold, having got separated from other commodities and turned into their general equivalent, served that purpose. But it appeared later that full value money (gold) can be replaced in circulation by mere money symbols. This led to the emission of currency notes (treasury bills) and of bank notes. The existence of money and of monetary economy is the result of the elemental economic development of the commodity economy. Money and monetary economy are not a creation of the legal system. The legal system regulates the monetary economy by establishing the currency and currency system. Money and currency do not mean the same thing. The decisive feature of currency is that currency is a financial means put into circulation by the state which circulation is controlled by the state. On one hand the state determines by legislation the monetary commodity, i.e. the commodity that is to serve as general equivalent and thereby act as measure of values and on the other the state fixes the standard of prices. Both in determining the monetary commodity and in fixing the standard of prices the state is, of course, restricted by the action of economic laws. Though the legal regulation of currency is a deliberate legal act, it is nevertheless always contingent on the economic reality. Currency relations are ruled by law. The rules of law regulating the unit of currency, its gold content, relation to other units of currency, organisation of emission and circulation of media of payment and the control thereof come within the scope of monetary law. In future rules of law regulating the conditions of convertibility of currency should also be part of the monetary law. The monetary law is in very close relation with the exchange law. For inst. foreign exchange is in fact foreign currency. Nevertheless both monetary legal relations and exchange legal relations have their specifics. The specific of the monetary legal relations is their object, i.e. the currency as a certain means of payment established by the legislation of the state, which every citizen and every organisation are liable to accept as legal tender. The specific of foreign exchange legal relations is the fact that these are always relations concerning the foreign exchange economy of the socialist state, i.e. always relations having a certain foreign monetary aspect. The specifics of monetary legal relations and of exchange legal relations make themselves felt clearly in their application in practice. While the monetary law mostly comprises rules of organisation nature with a merely indirect property incidence (for inst. establishment of the currency unit, parity and rate of exchange of currencies, organisation of emission and circulation of media of payment), the foreign exchange law and complementary regulations are rules of an out-and-out economic nature, imposing on natural and legal persons by orders and prohibitions restrictions and obligations for the purpose of the most effective implementation of the state foreign exchange monopoly. Despite these specifics both the monetary legal relations and the foreign exchange legal relations can be classed under financial legal relations with which they have all the most important features in common. In recent times discussions on the so called bank law are frequently taking place. In my opinion here, too, it is not possible to speak of an independent branch of law, but merely of a specific aggregate of rules in which both the monetary and foreign exchange law could be incorporated. To my mind the bank law should not comprise just rules regulating the business of financial institutions, such rules being part and parcel of the financial law, but also rules that are part of other branches of law, for inst. of the civil, economic, administrative law etc. and that at greater scope than would be the case with respect to financial legal rules. Accordingly, a certain specific aggregate of rules regulating all the activities (not just the financial business) of financial institutions could be termed bank law. But I suppose at the same time that the prerequisite of the actual and not merely theoretical existence of bank law would be a bank law code accumulating all such rules in a single group. Otherwise, as for instance in the Polish People’s Republic, though there is a skeleton regulation yet in addition to it a number of further rules, it is just a theoretical term that can be replaced by any other term. II The agency authorised in this country to emit media of payment, organise the circulation of money, fix the rates of exchange, protect the currency and to carry through in general monetary policy is the Czechoslovak State Bank (Státní banka československá). With the issueing of the Czechoslovak State Bank Act No. 144/ /1970 Coll, the controversy lasting some years between the advocates of a uniform and single universal bank and the adherents of a banking-currency system with three emission banks and a number of financial institutions of a commercial nature came to an end. The new Czechoslovak State Bank Act is the realization of the political direction given by the resolution of the Central Committee of the Communist Party of Czechoslovakia in January, 1970, according to which the Czechoslovak State Bank was to be organised as a uniform emission, credit and clearing organisation in the interest of the uniform Czechoslovak economy. Under the new Act the Czechoslovak State Bank went over from drawing up of the credit and treasury plan to working out the complex monetary plan, embodying the credit, treasury and foreign exchange plan and to drawing up of principles of both the internal and foreign banking monetary policy. The monetary plan serves to complement and to improve the system of supreme economic plans of the state and to create better prerequisites for the general control of the currency by the Government. This ensures that all money and foreign exchange coming from the economy into the banking system and vice versa is both in the internal economy and in relations to other countries made use of in a coordinated and effective way. Changes in the organisation and activities of the banking system did not take place in the Czechoslovak Socialist Republic alone, but also in a number of other socialist countries. In evaluating the socialist banking system as a whole one can see that two concepts are being applied in the individual socialist countries. A part of the countries did not reform their banking system, though an economic reform is being put into effect. The other part, in particular the German Democratic Republic, proceeded to take concrete institutional steps by constituting commercial banks. It is difficult at the moment to draw conclusions from the discussion on the socialist banking system that might be of general validity for all the socialist countries. The theoretical discussion, mostly connected with emphasis on the part of the bank profit is by far not concluded, nor does the short practice in the German Democratic Republic justify such conclusions. Therefore any generalisation and evaluation of such experience will require some time still. But I think, though for the present situation in the Czechoslovak Socialist Republic, concerned as we are with strengthening of the central control, a uniform State Bank is the only possible solution, that it is not possible to turn a deaf ear to the views advocating the separation of emission and commercial banking, to the contrary it is necessary for the future to study carefully further theoretical conclusions of and the practical experience made by other socialist countries. III One of the fundamental questions of the theory of currency and monetary relations are the problems of parity and rate of exchange of the currency. With the Monetary Reform Act No. 41/1952 Coll, the Czechoslovak Crown was declared as the currency unit in the territory of Czechoslovakia and at the same time its gold content equivalent to 0.123426 grams of fine gold and its rate of exchange in relation to the Rouble were fixed. The Czechoslovak State Bank announces at present rates of exchange of currencies every month in the rate of exchange list. But the majority of rates in the list is nowadays just a record. In the sphere of commercial payments the official rate amended by the interior reproduction price equalization (IRPE) is used. The purpose of the IRPE is to equalize fundamental differences between the interior and foreign price levels. The differences in relations of our wholesale and foreign prices are then partly nullified in the economy by means of price surcharges and reductions. The IRPE is not a rate of exchange, but rather a trade price measure which with its consequences affects the currency sphere. In principle it would be possible to describe the IRPE as a price coefficient used as the instrument for gradual transition to a realistic and uniform rate of the Crown. While evaluating these economic instruments, in particular the IRPE from the aspect of legal regulation, it should be stated that the respective measures are mostly based on Government decrees and concretised in the directions of the Chairman of the Czechoslovak State Bank. But Government decrees can not be regarded as general rules of law, since they are of a nature of internal directive instructions. Nor can the directions of the Chairman of the Czechoslovak State Bank be regarded as general legal regulations, since they are binding only for organisations that are in relationship to the Czechoslovak State Bank. The situation should be changed by regulation of the rate of exchange problems in a general rule of law, because the IRPE does not apply only to organisations today, but since May 1st, 1970, and January 1st, 1971, respectively, to natural persons (sale of air and railway tickets to capitalist countries and to Yugoslavia, postal and telecommunication rates). In the sector of non-commercial payments to socialist countries so called conversion rates for non-commercial payments are used. The legal basis for bilateral establishment of these conversion rates was the Treaty on Non-commercial Payments Clearing and the Protocol to the Treaty concluded by the socialist countries on February 8th, 1963. These conversion rates as such do not, however, express the actual foreign exchange value of the currency, since the total of non-commercial payments for any one year has to be converted by means of a coefficient to the clearing currency, i.e. to the foreign trade price level. In the non-commercial payments sector with capitalist countries the official rate amended by a system of currency bonifications is used. In my opinion the so-called administrative charge for the development of tourist traffic intended to regulate the offer of and demand for foreign exchange of capitalist countries deserves negative appraisal. I believe that separation of the currency aspects (bonification) from the non-currency aspects (administrative charge) for inst. by way of increase of the non-recurring charge for issueing the exit permit. In the near future, i.e. in the 5-year plan period, it will obviously not be possible to unify the rate of exchange, but it will be necessary to reckon with the economic instruments and conversion rates respectively for the sphere of commercial and non-commercial payments. But it should be borne in mind that a united and realistic rate can be achieved only by full application of the socialist economic control system which makes use of objective monetary laws and of the socialist function of money. The basis for this way is the complex programme of further strengthening and improvement of cooperation and expansion of the socialist economic integration among the Council of Economic Mutual Aid member countries. IV The 23rd session of the Council of Economic Mutual Aid came to the conclusion that it is necessary to prepare a complex long term programme of further strengthening and improvement of cooperation and expansion of the socialist integration among member countries of the Council of Economic Mutual Aid. The socialist integration dealt with in the document is conceived as qualitatively different compared to the capitalist integration directed at the abolition of customs and other barriers. The socialist economic integration must find its expression also in legal integration. I believe that the process of rapprochement of the legal systems of the socialist countries will in the first place make itself felt in such branches of the law that reflect immediately economic relations in the legal sphere — i.e. in civil, economic and financial law. In the sphere of financial law the first to be concerned will certainly be the currency problems. One of the most important problems which has to be dealt with in this field is the question of the convertible Rouble. The convertible Rouble is a means created legally among the Council of Economic Mutual Aid countries, but it does not exist in its monetary form. In principle the convertible Rouble is not a unit of currency, but a clearing unit used in remote relations of the participants of the multilateral clearing in the International Bank of Economic Cooperation. Strengthening of the part of the convertible Rouble not only as a clearing unit but in particular as a unit with a wide degree of convertibility is an objective necessity. The prime prerequisite of a truly transferable currency is in my opinion the solution of the price problems of the individual member countries of the International of the national currencies and the convertible Rouble. A document of eminent significance in this respect, which outlined not only the fundamental stage but also the targets on the way to the transferability of the Rouble and later convertibility of the Rouble and of the national currencies of the member countries of the Council of Economic Mutual Aid, is the above quoted Complex Programme of further Strengthening and Improvement of Cooperation and Expansion of the Socialist Economic Integration of the member countries of the Council of Economic Mutual Aid. Some concrete steps on the way outlined by the Complex Programme in my opinion are represented by the changes carried out in the system of credits, and further the establishment of the International Investment Bank. Not only does the establishment of the International Investment Bank exercise heavy pressure on the effectiveness of investments in the individual socialist countries, but the International Investment Bank is in fact the first centre of coordination of the economic plans. In addition the fact of the foundation of the International Investment Bank offers conditions for an attack on the system of bilateral balancing, one of the brakes acting on the development of integration in the foreign exchange financial sphere, and emphasizes significantly the position and function of the transferable Rouble.