Art. 395 Civil Code of the Russian Federation. Responsibility for non-fulfillment of a monetary obligation

Responsibility for non-fulfillment of any monetary obligation is provided for by the current legislation of the Russian Federation. In particular, for unlawful use of other people's money, sanctions are established art. 395 Civil Code of the Russian Federation. Comments on this article are available below.

Regulation of liability

Universality of money in economic circulation, as well as in civil circulation, their universal equivalence are one of the main properties that are inherent exclusively in the subject of monetary obligation. This object has specific properties, and therefore the need for a specially established regulation of liability, occurring in the event of default of a monetary obligation, is natural. Art. 395 of the Civil Code of the Russian Federation with the comments to it just determines the necessary provisions and conditions that are called upon to regulate such responsibility. This article provides for appropriate sanctions for non-fulfillment of the obligation that is monetary.

Basis for the occurrence of liability

How can a breach of a monetary obligation occur? Naturally, only in one form is the delay in the repayment of the entire amount of money or a part thereof, depending on what conditions are stipulated by the parties in the contract. This exclusive form also places the obligation in question apart from other obligations.

Thus, the basis for attracting a person who violated the monetary obligation, will be the fact that the funds are not returned within the period specified by the parties. It is this factor that influences the establishment of the debtor's liability and the application of art. 395 of the Civil Code of the Russian Federation, and not how he used the money - illegally or legally.

Losses

In modern market relations, on which today's economy is built, any person engaged in business, whether an individual entrepreneur or a commercial organization, constantly uses his money. As a rule, it invests these funds to replenish current assets, as well as to some other vital goals for business. In the 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 not fulfilling his obligations, an individual entrepreneur or organization has a shortage of funds, which he expected. He can no longer send money to the development or maintenance of business, and in some situations this can be fraught with significant damage, or even a complete collapse of the business. The lender of the dishonest debtor has only one way out to prevent possible damage, this is getting money out of loan. Often entrepreneurs apply for this to banks, which, as is known, for their loan require their reward, consisting of a percentage of the funds received. These are the percentages of art. 395 CC and will be considered losses, which the unsecured debtor caused the creditor, not fulfilling his obligation. If he gave the money on time and on time, the lender would not need to contact the bank. Thus, these losses must be compensated by the violator of the monetary obligation.

No need for proof

If we proceed from the meaning of Art. 395 of the Civil Code, which regulates the possibility of exercising the powers of the lender to demand from his debtor interest, when the monetary obligation is violated, the legislator does not establish the obligations of such creditor to prove the fact that he was actually caused any losses. In other words, such a creditor does not have to confirm by any documents what interest he paid to the bank after he was forced to get a loan. And in general, he should not prove even the fact of the very receipt of the loan, which he had to take because of the debtor's breach of obligations.

On the other hand, the lender is not also charged with proving the amount of the violator's income that he may have received by using illegally alien money. Moreover, the creditor has the right to demand compensation for losses, regardless of whether the debtor used unreturned cash, whether he received any profit from them, or this money was not used at all.

Bank interest

Still, to obtain losses, the lender still has to prove something. This is the amount of bank interest that operates in the region of the location of the organization that has given money in debt, or in the region of residence of the creditor-citizen. However, the receipt of such evidence is not connected with any difficulties, it is possible to get a certificate of bank interest without problems in any such financial institution. From the point of view of legislation, such a decision is quite understandable. A creditor who has not received the money in time, as a rule, appeals to the nearest bank branch for processing a loan. Often, such a bank is already serving this entrepreneur.

The difference from the previous law

It should be noted that the new art. 395 of the Civil Code does not set a certain amount of interest that a citizen or organization that violated a monetary obligation is obliged to pay to its creditor. If in the previous Civil Code the amount of such interest was determined, but now it is set by the bank's interest rate.

Bank rate

Interest rate of bank interest - what is it? Civil law does not give this definition any deciphering, believing that it is necessary to be based on the usual understanding of the operation of the financial mechanism on which turnover is serviced. 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 used by banks when granting loans to customers.

Taking into account the diversification of the financial market, at the time of determining the rate under consideration, certain factors must certainly be taken into account with which the obligation is violated. One of these is, of course, the period of misuse of funds, the amount of debt. In those cases where the location of the creditor is located several different financial organizations, with the interest in each of them vary among themselves, the rate under art. 395 of the Civil Code of the Russian Federation is used averaged, expressed in annual percentages.

Calculation of bank interest

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 discharged. However, it should be recognized that bank interest is highly exposed 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 losses incurred as a result of a breach of the monetary obligation. In this situation, the legislator provides an opportunity for the lender to file a statement of claim under Art. 395 Civil Code with the inclusion of claims for compensation of losses taking into account the bank interest existing on the day of filing such a claim. It is also possible to base the claim on the interest on the day of issuing the judicial act. In any case, the choice of how to file their claims remains with the creditor.

Determination of interest under the contract

The statutory act also establishes that the amount of interest that the debtor owes the debtor's obligation may be determined not only by law, but also by agreement of the parties. Probably, with the passage of time, taking into account the trends of the legislation towards its liberalization, the situation when these percentages will be established by law, will gradually be reduced to a minimum.

The contractual form of determining these percentages is gaining increasing use in the economic activities of business representatives. This is due to the fact that creditors thus try to minimize their risks against the backdrop of 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 that can be reflected in the agreement of the parties (the contract), this does not mean that participants in civil legal relations can determine them at any size. So, the Civil Code defines certain limits in which civil rights can be exercised. Such limits, for example, are established if the rights are exercised in order to restrict competition or abuse of the organization by a certain dominant position.

Practice in courts

The judicial practice of dealing with civil disputes to date is as follows. In cases where the parties to the agreement have agreed on the terms under which the debtor can violate obligations by the creditor, a penalty may be collected from him under art. 395 of the Civil Code of the Russian Federation - a fine, then later it will no longer be able to demand the recovery of interest for the misuse of other people's money. This position of arbitration courts is explained by the fact that, according to the norms of 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 occurs when the debtor's failure to fulfill his obligations to the lender can cause him such losses, which are unlikely to be covered by the receipt of funds accrued as interest. In such situations, the creditor is charged with proving this fact, that is, he will need to confirm that the losses have arisen in a much larger amount. When the courts resolve such disputes, general rules of law apply, which relate to liability for non-fulfillment of obligations. In practice, such situations are quite rare. This is due to the fact that fluctuations in bank interest mainly reflect the 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, in the role of such factors may be depreciation of money as a result of inflation.

The period from which interest begins to accrue

It is known that interest is accrued before 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 these percentages begin to accrue, the legislator is not directly established.

At the same time, it is assumed that the calculation under Art. 395 CC shall be made from the moment of violation of the right of the creditor to receive its funds. For example, if in the contract between the lender and the debtor the time limit for transferring money to the first is set, interest shall be accrued on the day following the default of the second. And in those situations where the obligation arose with the debtor after he received the creditor's claim, the interest should be accrued from the end of the period calculated by adding to the date of presentation of the normally required period for the fulfillment of this claim by the debtor.