Responsibility for failure to fulfill any monetary obligation is provided for by the current legislation of the Russian Federation. In particular, for the misuse of other people's money, sanctions are established by Art. 395 of the Civil Code of the Russian Federation. Comments on this article can be found below.
Liability regulation
The universality of funds in economic circulation, as well as in civil circulation, their universal equivalence are some of the main properties that are inherent exclusively to the subject of monetary obligation. This item has specific properties, and therefore the need for a specially established regulation of liability arising in the event of non-fulfillment of a monetary obligation is natural. Art. 395 of the Civil Code of the Russian Federation with comments to it precisely determines the necessary terms and conditions that are designed to regulate such responsibility. This article provides for appropriate sanctions for failure to fulfill a cash obligation.
The basis for liability
How can a violation of a monetary obligation occur? Naturally, only in one form is a delay in the return of all or part of the money, depending on what conditions are stipulated by the parties in the contract. Such an exceptional form also places the obligation in question separately from other obligations.
Thus, the basis for bringing a person who violated a monetary obligation to liability will be the fact of non-return of funds in a period specified by the parties. It is this factor that affects the establishment of liability of the debtor and the application of Art. 395 of the Civil Code, and not how he used the money - illegally or legally.
Loss
In modern market relations, on which today's economy is built, any person engaged in business, whether it is an individual entrepreneur or a commercial organization, constantly uses the money belonging to him. As a rule, it invests these funds to replenish working capital, as well as to some other purpose vital for business. In the most extreme case, businessmen put such money in financial institutions on deposits, from which they also receive a certain income. In the event that the debtor of such a person does not return the previously received money, thereby does not fulfill his obligations, the individual entrepreneur or organization has a shortage of funds for which he was counting. He can no longer send money to develop or maintain a business, and in some situations this can be fraught with significant damage, or even the collapse of entrepreneurial business. The creditor of an unscrupulous debtor has only one way out, in order to prevent possible damage, is to receive money on loan. Often, entrepreneurs turn to banks for this, which, as you know, require a fee for the loan received, which is a percentage of the funds received. These are the percentages under Art. 395 of the Civil Code and will be considered as losses caused by an unscrupulous debtor to the creditor, failing to fulfill his obligation. If he gave the money on time and on time, the creditor would not have to contact the bank. Therefore, these losses must be compensated by the violator of the monetary obligation.
No need for proof
Based on the meaning of Art. 395 of the Civil Code, which regulates the possibility of exercising the powers of the lender to demand interest from his debtor when the monetary obligation is violated, the legislator does not establish the obligations of such a creditor to prove the fact that he actually suffered any losses. In other words, such a creditor is not required to confirm with any documents what interest he paid to the bank after he was forced to get a loan. Anyway, he should not even prove the fact of receiving a loan, which he had to take because of a violation by the debtor of obligations.
On the other hand, the lender is also not charged with the obligation to prove the amount of income of the violator of the obligation, which he may have received using illegally someone else's money. Moreover, the creditor has the right to demand compensation for losses, regardless of whether the debtor used non-returned funds, whether he received any profit from them, or if this money was not used at all.
Bank interest
Nevertheless, in order to receive losses, the lender still has to prove something. This is the amount of bank interest that is valid in the region where the organization that donated funds is located, or in the region where the citizen creditor lives. However, obtaining such evidence is not associated with any difficulties; a certificate of bank interest can be obtained without any problems at any such financial institution. From the point of view of the legislation, such a decision is understandable. The lender who has not received the money on time, as a rule, turns to the nearest bank branch to get a loan. Often, such a bank is already serving this entrepreneur.
Difference from previous law
It should be noted that the new Art. 395 of the Civil Code of the Russian Federation does not establish a certain amount of interest that a citizen or organization that violated a monetary obligation is obligated to pay its creditor. If the amount of such interest was determined in the Civil Code that was in force before, now it is set by the bank’s interest rate.
Bank rate
Bank interest rate - what is it? Civil law does not give this definition any decoding, believing that it is necessary to be based on the usual understanding of the financial mechanism by which the turnover is maintained. Based on this, it is possible to conclude that the article in question indicates the rates that are currently applied in the financial market. In other words, these are the rates applied by banks when issuing loans to customers.
Taking into account the diversification of the financial market, when determining the rate in question, certain factors that are associated with the violated obligation are undoubtedly required to be taken into account. One of these is, of course, the period of misuse of funds, the amount of the debt. In cases where at the location of the creditor there are several different financial organizations, while the interest in each of them varies, the rate under art. 395 of the Civil Code of the Russian Federation is used averaged, expressed in annual percent.
Bank interest calculation
The Civil Code defines a general rule, based on which the amount of interest is calculated on the date when the monetary obligation will be fulfilled. However, it should be recognized that bank interest is quite susceptible to all kinds of fluctuations. Therefore, if the debtor allows a long delay, there is a risk that the creditor will not receive adequate compensation for the losses incurred as a result of violation of the monetary obligation. In this situation, the legislator provides an opportunity for the lender to file a statement of claim under Art. 395 of the Civil Code with the inclusion of a claim for compensation for losses, taking into account bank interest existing on the day such a claim is filed. You can also base the requirement on interest on the day the judgment is issued. In any case, the choice of how to submit your requirements remains with the lender.
Determination of interest on the contract
The normative act also established that the amount of interest that the debtor who has overdue the monetary obligation will be required to pay can be determined not only by law, but also by agreement of the parties. It is likely that over time, given the tendency of the legislation to liberalize it, situations where these percentages will be established by law will gradually be minimized.
The contractual form for determining these percentages is gaining increasing application in the business activities of business representatives. This is due to the fact that lenders are thus trying to minimize their risks amid instability in the overall development of the market and its constant fluctuation. Meanwhile, although the legislation does not establish any restrictions on the amount of interest, which can be reflected in the agreement of the parties (agreement), this does not mean at all that the participants in civil legal relations can determine them in an arbitrary amount. Thus, the Civil Code defines certain limits within which civil rights can be exercised. Such limits, for example, are established if the rights are exercised with the aim of restricting competition or abuse of an organization by a certain dominant position.
Practice in the courts
The jurisprudence of civil disputes today is as follows. In cases where the parties to the agreement agreed on the conditions under which, in case of violation of obligations by the debtor, the lender can be recovered from it forfeit under Art. 395 of the Civil Code of the Russian Federation - a penalty, then subsequently he will no longer be able to demand even the recovery of interest for the misuse of other people's money. This position of the arbitration courts is explained by the fact that, according to the Civil Code, it is impossible to impose two measures of responsibility on the debtor for one offense.
When losses are greater than interest
It is quite possible that such a situation would arise in which the debtor's failure to fulfill his obligations to the lender could cause him such losses that are unlikely to be covered by receipt of funds accrued as interest. In such situations, the lender is obliged to prove this fact, that is, he will need to confirm that he has incurred losses in a much larger amount. When courts resolve such disputes, the general rules of law apply, which relate to liability for failure to fulfill obligations. In practice, such situations are quite rare. This is due to the fact that fluctuations in bank interest mainly reflect economic factors occurring in the country, and this, in turn, may become the basis for filing some other claims from the lender to compensate for additional losses. So, the role of such factors may be the depreciation of money as a result of inflation.
The period from which interest begins to accrue
It is known that interest is accrued until the date of actual settlement with the creditor-debtor. By law or by agreement of the parties, this period may be shortened. The moment from which the accrual of these interests begins is not directly established by the legislator.
However, it is assumed that the calculation under Art. 395 CC should be made from the moment of violation of the creditor's right to receive his money. For example, if the contract between the lender and the debtor sets the deadline for the transfer of money to the first, then interest should be accrued on the day after the default of the second. And in those situations where the obligation arose on the debtor after he received the creditor’s claim, interest should be calculated from the end of the period calculated by adding to the date of the demand presentation the normally necessary period for the fulfillment of this claim by the debtor.