Art. 395 of the Civil Code of the Russian Federation: interest calculation
ATst. 395 of the Civil Code of the Russian Federationrecorded the consequences of using money in case of their unlawful withholding, evasion of return or other delay in payment. The rules of the rule also apply to cases of unjust receiving or saving funds at the expense of another subject. Consider further.
For using other people's finances in connection with their unlawful withholding, evasion from return, another delay in payment or unjustified receipt / savings at the expense of another entity, the amount of these funds must be paid interest. According to art. 395 of the Civil Code of the Russian Federation, their value is determined on the basis of the rates existing in the place of residence (or location - for legal entities), published by the Central Bank, which took place in the relevant period. This provision applies if a different value is not provided by the contract or law.
If the losses incurred by the creditor in connection with the unlawful use of his money, more than he may require the debtor to compensate for losses in a part that exceeds the amount.The% is charged on the day of payment of the funds for which they are charged, unless a shorter period is established by the contract or regulations. If the agreement provides for a penalty for non-fulfillment or improper performance of the obligation, it shall not be made. A different rule may be established by contract or law.
In accordance with paragraph five of Art. 395, the accrual of interest on interest on obligations, including in the conduct of entrepreneurial activity, is not allowed unless otherwise provided by contract or law. If the amount to be paid is disproportionate to the consequences of non-fulfillment of the terms of the transaction, at the request of the debtor, the court may reduce%, but not less than to the value determined at the rate specified in paragraph 1.
Carrying out, many experts face a number of difficulties. First of all, problems are connected with the understanding of the terms used in the norm. In particular, the article refers to the "percentage for the use of cash." In the Code there are three options for the interpretation of the concept. Thus, at the 809 rate, the terms of the loan agreement may stipulate the payment of interest on the amount ofdeal. If the parties have not provided for such a clause, the charge is made on the basis of the refinancing rate. The concept of interest is similarly applied in the articles regulating credit relations (Art. 823, 819). In the 811 rate,% means a penalty. It is charged on funds not paid within the prescribed period, unless otherwise specified by law or by contract. It should be said that such interest is charged regardless of the fee for the use of money. Similar provisions are present in the 856 norm. However, here it is necessary to take into account that the reference position of articles speaks only about the accrual mechanism. Other rulesst. 395 of the Civil Code of the Russian Federationignored. The provisions of the considered norm act as an independent measure of responsibility.
Features of legal relations
The rules of art. 395 of the Civil Code of the Russian Federation is used in case of delay in performance or non-fulfillment of a monetary obligation by one of the participants. In this case, there is a fairly broad interpretation of this transaction condition. This is a commitment that is expressed in money. Accordingly, it may consist in the payment by a single participant of any amount for goods, works, services, or act as a type of contract forming the obligation as a whole (loan agreement, for example).If money acts as a commodity in a transaction or is not used as a means of payment, the rulesst. 395 GKdo not apply. However, in practice there may be situations when the rules of the article apply to non-monetary obligations. For example, under the sale and purchase transaction, the goods were not handed over, but payment was made. Under article 487, the seller has an unfulfilled obligation to provide the object, but he has already received funds. Unless otherwise provided in a law or agreement, the buyer is entitled to produce from a prepaid amountcalculation under art. 395 of the Civil Code of the Russian Federation. In this case, the seller uses the funds received illegally. Therefore, his actions are appliedst. 395 GK.
Analyzing the contentst. 395 GK,It can be noted that the% charge occurs when the other party uses the funds. In practice, the state of the legal means does not make sense. On the application of the rulesst. 395 GKthey do not affect whether they act as a means of payment or are put on a p / s.
The basis for the application of standards
As keyaspects of art. 395 GKfavors the fact that the funds are strangers.Money under the terms of the transaction, the debtor is obliged to return, but he does not. Breach of contract may manifest itself in the form of evasion from fulfillment of conditions, delay in payment, savings, withholding or unreasonable receipt of money.
Calculation according to Art. 395 GKmust be subject to legislation or contract. If such conditions are not available, then the refinancing rate should be applied. However, this indicator can change quite often. In this regard, the norm establishes the period for which the value of the bet is accepted. It is the date of performance of the obligation (partial or complete). Here you can say about the likely benefits for the parties to the transaction. They depend on the exact direction in which the value of the bet changes. With its increase on the date of payment in comparison with the overdue period, it is certainly beneficial to the lender, and a decrease, respectively, to the debtor. Meanwhile, the rule provides for the right of the court to set the date on which the rate is determined. This may be the date the claim was filed or the day the dispute was resolved. The court, therefore, in order to make a fair ruling, can use the closest value of the rate to its indicator, which took place within the framework of the overdue period.
It is necessary to take into account that, according to the norm in question, the losses and the amount of interest to be collected should be correlated according to the rules of Article 394. They should be recovered only in parts not covered by the sum of%. Due to the fact that the law, like the contract, may establish payment of penalties / interest, if the obligation has not been discharged, the court has the right to restrict the creditor’s right to demand the deduction of either this penalty or interest calculated under Art. 395. At the same time, a person does not prove the fact of losses and their amount, unless otherwise specified by the contract or legislation. Despite the possible fairness and consistency of this practice within the framework of economic feasibility and economic significance, there are no legal prerequisites for establishing such a restriction for the creditor. Art. 395 differentiates the penalty and interest. However, it provides that in case of disproportion in the rate arising from the delay in consequences, the court may reduce it, since the interests, according to Article 333 of the Code, are of compensatory nature.
When analyzing the comments of lawyers,Attention should be paid to the option that if the creditor refuses to accept the performance of the obligation proposed by the debtor or the first does not perform the actions prescribed by law or contract, as a result of which the second party was unable to fulfill the obligation, the lender will be the one who is overdue. In such situations, refer to provisions 406 of the Code. In accordance with them, the debtor’s interest payment obligation disappears. However, this rule only applies to the period of delay, the occurrence of which resulted in the action or inaction of the lender.
Conditions of application of the norm
Article 395 applies to cases of unlawful use of other people's money. In practice, there are several conditions under which the norm can be applied. For example, there are two subjects. Money belonged to one, but took advantage of another. This kind of relationship can take place in different ways. Normally only some of them are defined. In this case, the above list can not be considered final.The article establishes that interest is collected if you illegally detain or receive money, or delay in their return, including in the case when they had to be spent for certain purposes, but this was not done. This article is exclusively about financial commitment. This means that only money is a matter of dispute. They must be received and not returned or there is an obligation to pay under the contract. An important condition for the application of the considered norm is the illegitimacy of the actions of the debtor. Under all conditions, the calculation of interest.
Specificity of calculations
According to the provisions of the norm in question, the interest is determined at the established refinancing rate of the Central Bank on the date when the debtor fulfilled the obligation (i.e., returned the money). Separately, the situation when the penalty is made in the court. In this case, the day on which interest is calculated is determined. As mentioned above, they may be the date of filing claims or the day the decision was taken on the case considered on the merits.The formula for the calculation is an equation in which the amount of debt is multiplied by the number of days of delay, and then by the Central Bank refinancing rate per day. The number of days should not be "general" (calendar), but the so-called effective. The following formula is valid here. The equation uses the starting and ending days - the dates of occurrence and repayment of debt:
- Interest rate = debt amount x number of overdue days x Central Bank rate / 360x100%.
Accordingly, years and months are translated into days. Attention should be paid to their quantity, which is taken in the equation. The year according to the formula is 360, and the month is 30 days. The refinancing rate is taken as the value per year. To calculate it per day, you need to use the second part of the formula. The rate is multiplied by 360 x 100%.
Cash liabilities always bear certain risks. Unfortunately, not always one party or another is able to fulfill its obligations. In case of violation of the contractual conditions by one participant, the second incurs losses. The law provides for various options for compensation for losses. As one of the liability measures are the interest on the amount of debt.It should be noted, however, that it applies exclusively to monetary obligations. The main condition is the fact of unlawful use of funds belonging to another subject. It should be noted that, by establishing certain guarantees for the lender, the law provides for restrictions on their implementation.