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§ 4. Responsibility of subjects of contractual legal relationships in system of housing and communal services of the Russian Federation

The responsibility institute has objective character, is fixed in regulatory legal acts and acts as the precondition of external display of infringements of legal obligations. Without an establishment of legal responsibility there can not be a condition of its realisation.

The responsibility institute has been never deprived by attention of researchers. As scientist Vitruk N.V. specialising on theoretical and practical questions of responsibility, legal responsibility - the major institute of any legal system, one of the main signs of the right, a necessary element of the mechanism of its action fairly marks. Owing to it the problem of legal responsibility occupies one of the central places in the general theory of law and in branch jurisprudence. Despite its traditional character, it is always actual. 1

Legal responsibility is a duty regulated by the right to give the report in the actions. Report reclamation - the basic sign and essence of responsibility, and whether will follow the report condemnation and punishment is already other question. [203 [204] [205] [206]

O.S.Ioffe wrote, that legal responsibility is special is state-forced measure, bringing down on the responsible

-e

The subject essentially new, additional encumbrances

Let's agree with the famous jurist S.N.bratus who in the works noticed, that legal responsibility is a same duty, but

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Compulsorily executed.

It is accepted to name leading functions of legal responsibility vosstanovitelno-compensatory and karatelno-penal which are supplemented with preventive and educational functions of legal responsibility. The first of named most typical for grazhdanskopravovyh relations.

The responsibility institute takes a special place in structure of branch of civil law. It concentrates the majority of regenerative and guarding civil-law norms. Norms of this institute provide action of branch legal principles of restoration of the civil rights and their judicial protection (article 1 GK the Russian Federation). Problems with realisation reguljativnyh the norms establishing the rights and duties, as a rule, arise at the moment of their infringement and, as consequence, at the moment of the reference to necessity of application of measures of responsibility.

Legal responsibility is generated by an offence, therefore the fact of fulfilment of an offence is the beginning of objective life of legal responsibility irrespective of, realises made unlawful conduct as an offence or not, it is revealed or not competent bodies. [207]

As a matter of fact, the majority of quarrels at law are disputes on impeachment or application of other measures of protection of the broken rights.

Let's make the definition of legal responsibility applied in investigated relations. Responsibility - a duty to undergo consequences of infringement of the rights of other persons or the duties within the limits of relations on resursosnabzheniju, and also the coercive measure to observance of treaty provisions resursosnabzhenija and the rules of law regulating the relations on resursosnabzheniju, applied by subjects of relations on resursosnabzheniju or authorities to subjects by whom these treaty provisions resursosnabzhenija or regulatory legal acts are broken.

In our opinion, such concept of responsibility to the full can be applied in sphere of housing and communal services and resursosnabzhenija.

With introduction in action of the Housing code of the Russian Federation since 2005 and acceptance of the rules of granting of utilities provided by it and of some other regulatory legal acts the system of the legislation regulating contractual relations between resursosnabzhajushchimi by the organisations and subscribers, has been complicated by positions of the housing legislation regulating the relations between citizens - consumers of utilities and executors of utilities.

Similar imposing has been caused, first of all, by introduction in a chain of relations between citizens-consumers and resursosnabzhajushchimi the organisations of the additional subject - the executor of utilities. The exception constitutes a case when owing to point 2 of article 161 ZHK the Russian Federation citizens chose a direct way of management of a multiroom apartment house.

Even more often resursosnabzhajushchie the organisations began to show for payment to executors of utilities of the sum who could not be filled by them at the expense of payments of citizens for utilities which besides not always differed high payment discipline. Resursosnabzhajushchie the organisations made claims about dovzyskanii from executors of utilities formed as a result of application of various techniques of calculation of a difference in cost of the put municipal resource.

In connection with such problems already after coming into force of the Housing code of the Russian Federation normative acts, first of all subordinate legislation with which help the legislator simultaneously tried to settle questions of housing and communal services and also resursosnabzhenija, as much as possible keeping balance of interests as large have started to appear

Players of the market of power supply, and citizens-consumers. Necessity of an effective utilisation of municipal resources, the indispensable exact account of the consumed services became a mainstream of reforms. And, it is frequent normative acts, contradicting each other, regulate the same legal relations. All it defines complexity in understanding of mutual relations resursosnabzhajushchih the organisations, executors of utilities, consumers, definition of their rights and duties, and in case of infringement of mandatory provisions or contractual conditions, definition of measures of responsibility.

In the Civil code of the Russian Federation of responsibility under the power supply contract separate article 547 GK with the same name the Russian Federation in which point 1 the party which has broken the obligation is underlined, that in cases of default or inadequate execution of contractual obligations of power supply is devoted, obliged to indemnify the real loss caused to it (point 2 of article 15 GK the Russian Federation). According to position of point 2 of specified article if as a result of the regulation of a mode of consumption of the energy which has been carried out on the basis of the law or other legal acts, it is admitted having rummaged in giving of energy to the subscriber, energosnabzhajushchaja the organisation bears the liability for nonperformance or inadequate execution of treaty obligations in the presence of its fault.

Article 547 GK the Russian Federation is a classical example of legislative restriction of responsibility by a separate kind of the obligation, regulating limited liability under the power supply contract: in cases of default or inadequate execution of contractual obligations of power supply the party which has broken the obligation, is obliged to indemnify the caused real loss.

Despite the laconic formulation of article 547 GK the Russian Federation, the norms concluded in it, are capable to generate problems with its interpretation and application.

We consider wrong a position according to which article 547 GK the Russian Federation limits responsibility only at obligation infringement on giving энергии.1 So, proceeding from the maintenance of article 539 GK the Russian Federation follows, that responsibility restriction extends on cases of infringement of following obligations: on giving of energy to the subscriber through the attached network, on payment for the accepted energy, and also on observance of the mode of its consumption provided by the contract, maintenance of safety of operation of power networks being in its conducting and serviceability of devices used by it and the equipment, connected with energy consumption.

Besides, the ambiguity causes a question on what establishment of measures of responsibility article 547 GK limits the Russian Federation. For example, according to point 3 of the Circular of Presidium YOU the Russian Federation from February, 17th, 1998 № 30 «the Review of practice of the resolution of disputes, connected with the power supply contract» judiciary practice supposes possibility of compulsory collecting of percent for using another's money resources if delay was available in connection with power supply execution of a contract. It is possible to consider the specified position as the basis for application by arbitration courts of such penal actions, at the same time, courts motivate such possibility from the point of view of legislatively admissible insufficiently.

As it is underlined in an explanation of superior courts, article 395 GK the Russian Federation provides consequences of default or liability delay in performance in which force the duty is assigned to the debtor to pay money [208 [209].

The point of view about possibility of collection of percent for using money resources under the contract resursosnabzhenija is based on general provisions on responsibility restriction in GK the Russian Federation. According to article 400 GK the Russian Federation is established responsibility restriction only on demand about the full indemnification of losses; however restriction of the liability for nonperformance of the liability (article 395 GK the Russian Federation) does not provide.

Proceeding from understanding of point 2 of article 394 GK the Russian Federation, it is possible to draw a conclusion, that article 547 GK the Russian Federation should not be applied to restriction of contractual measures of responsibility, in particular penalties as the given norm provides only restriction of losses which come under to compensation in the part which have been not covered with the penalty, or over it, instead of the penalty.

We specified, that the resource as the contract subject resursosnabzhenija possesses a number of properties (for example, quantity, quality), the main thing from which is its continuity. Responsibility is connected with the given property of energy resursosnabzhajushchej the organisations for a break or restriction in energy giving. The continuity characteristic means constant supply by energy according to developed schedules and modes. Restrictions in resource consumption, and also realisation of actions for regulation of production schedules of consumers are made in an order established by special instructions at the enterprises.

Resursosnabzhenie are continuous and long contractual economic communications, instead of the single separate contract, therefore the Russian Federation is in detail regulated by article 546 GK possibility, both the terminations, and stays of execution of the contract of power supply.

It is necessary to underline, that a rule of an interdiction for unilateral refusal of the public contract, in particular power supply (point 1 of article 426 GK the Russian Federation), it is valid not for any such contract. In the law there is the design of the public contract providing in the presence of certain conditions possibility of application of unilateral refusal of execution of a contract. In particular, the case resulted by us in point 1 of article 546 GK the Russian Federation when as the subscriber under the power supply contract the citizen using energy for household consumption acts, it has the right to terminate the contract unilaterally under condition of the notice on it energosnabzhajushchej the organisation and full payment of the used energy.

The named statutes reveal in branch normative acts in more details: point 1 of article 38 of the federal act from 26.03.2003 № 35 FZ «About electric power industry»; points 7, 30 Substantive provisions positions of functioning of the retail markets of electric energy.

In case losses by an illegal stopping delivery of the electric power, that have been caused the subscriber, having proved such losses, they come under to collecting by rules of article 15 GK the Russian Federation. For collecting of losses it is necessary to prove the following set of circumstances: the fact of their causing and the size, unlawful conduct prichinitelja harm, presence prichinnosledstvennoj communications between the arisen losses and actions of the specified person, and also to fault prichinitelja harm in an event.

Let's result as an example arbitration business № А43-15676/2013, the past three degrees of jurisdiction. Resursosnabzhajushchaja the organisation without the prevention has made switching-off of power supply of the subscriber. The subscriber asked the organisation to take urgent measures on restoration

Power supply, having informed it about rent of the diesel engine-generator and about collecting from it expenses on its operation. Judicially the subscriber demanded collecting of the losses caused by an illegal stopping delivery of the electric power. As a result, the requirement is satisfied, as the fact of switching-off of power supply and wine energosnabzhajushchej the organisations in inadequate execution of a contract during proceeding has been established, the size of a damage is confirmed. [210]

Also, quite often there are questions on legitimacy of power cutoff in premises of the citizens who have not paid given utility on the previous periods.

Owing to a part of 4 articles 3 ZHK the Russian Federation nobody can be limited in the right of reception of utilities differently as on the bases and is perfectly in order, provided ZHK the Russian Federation and federal acts.

By point 29 of Rules № 124 it is defined, that in the contract

resursosnabzhenija the order of stay and restriction of giving of a municipal resource in emergencies, in carrying out of scheduled maintenance of the centralised networks inzhenernotehnicheskogo maintenance and in case of presence at the executor of debts before resursosnabzhajushchej the organisation for the put municipal resource in the size exceeding cost of the corresponding municipal resource for 1 settlement period (settlement month), and also a responsibility of the parties for infringement of this order is provided.

The specified order is defined according to standard legal acts in sphere resursosnabzhenija taking into account the requirements provided by Rules of granting of utilities, and should exclude possibility of stay or restriction of granting of utilities to the consumers honesty executing the obligations on payment of utilities.

Rules of granting of utilities № 354 define an order and sequence of restriction and stay of giving of utilities (points 117 - 119).

According to point 2 subparagraph would Correct full and (or) partial restriction of a mode of consumption of electric energy № 442 [211], restriction of a mode of consumption of electric energy is entered at approach of any of the circumstances listed in this norm.

According to point 4 of the named Rules № 442, restriction of a mode of consumption is entered in connection with approach of the circumstances specified in the subparagraph "and", paragraphs 2, 4, 5 subparagraphs, in subparagraphs "e", and "to" point 2 of Rules № 442, - at the initiative of the guaranteeing supplier (energosbytovoj, energosnabzhajushchej the organisations, the manufacturer of electric energy (capacity) in the retail market) before which obligations are not executed or contractual obligations with which stop.

According to the subparagraph "in" point 7 of Rules № 442 kinds of restriction of a mode of consumption coming under to introduction are defined: partial restriction (reduction of a consumption level of electric energy (capacity); a stopping delivery of electric energy to the consumer during the certain periods within days, week or month or restriction of a mode of consumption in full as regards points of the deliveries specified in the contract on which basis supply by electric energy of the consumer is carried out) or full restriction (a time stopping delivery of electric energy (capacity) to the consumer). The restriction order is provided by point 19 of Rules № 442.

In case there was a disputable situation which has reached proceeding, that, at non-observance finding of fact energosnabzhajushchej the organisation of is standard established procedure of restriction (stay) of granting of utility described above, actions resursosnabzhajushchej the organisations admit illegal. [212]

Concerning possibility of the supplier of resources in general to disconnect from energy giving we will note the following.

Having analysed positions of point 1 of article 546 GK the Russian Federation, the Federal act from 27.07.2010 № 190-FZ «About a heat supply», Rules of the organisation of a heat supply in the Russian Federation, approved by the Governmental order of the Russian Federation from 08.08.2012 № 808 and, considering the status of the operating organisation, it is necessary to draw a conclusion that the civil legislation does not provide the right resursosnabzhajushchej the organisations unilaterally to terminate with the executor of utility dogovory supply by energy as end users of a resource are citizens.

At the same time, it only the general rule from which there is an exception.

At presence at the executor recognised as it under the certificate of verification of calculations or the debts confirmed with the decree before resursosnabzhajushchej the organisation for the put municipal resource in the size exceeding cost of the corresponding municipal resource for 3 settlement periods (settlement month), resursosnabzhajushchaja the organisation can refuse execution of a contract resursosnabzhenija if such right is provided by the contract (point 30 Corrected № 124).

Considering, that rendering of utilities is socially - the focused activity, the same point of Rules provides the following. The given condition (the right to refusal of the contract) should provide observance of the rights and legitimate interests of the consumers honesty executing the obligations on payment of utility.

If thus during proceedings it will be established, that in the concrete contract the condition about presence at resursosnabzhajushchej the organisations of the right to unilateral refusal of its execution is absent, in claims of subscribers about a recognition of contracts resursosnabzhenija by the operating will be given up. [213]

The norm of point 30 of Rules № 124 provides possibility of the parties to adjust in contract condition about right resursosnabzhajushchej organisation to terminate the contract in connection with presence at the executor of utility recognised as it under the certificate of verification of calculations of debts. However in the conditions of absence of such condition in contracts and taking into account optional character of the named norm at resursosnabzhajushchej the organisations is absent such the rights in most cases.

So, 3 conditions are named by the legislator for switching-off of giving of a resource:

1) such condition is provided by the contract resursosnabzhenija;

2) the debt constitutes a neopayment for 3 settlement periods;

3) the debt is recognised by the subscriber under the verification certificate.

One of treaty provisions resursosnabzhenija is quality of a submitted municipal resource. Resursosnabzhajushchaja the organisation bears a liability of infringement of the requirements shown to quality energoresursa.

The general requirement to quality of a resource is formulated in point 1 of article 542 GK the Russian Federation. In point 3 of Rules № 354 it is provided, that by granting of utilities should be provided uninterrupted giving in premises of municipal resources of appropriate quality in the volumes necessary for the consumer. Requirements to quality of utilities are established in the Appendix № 1 Rules № 354.

If other is not established by the contract resursosnabzhenija, resursosnabzhajushchaja the organisation bears responsibility for quality of a delivered municipal resource on border of section of the intrahouse engineering systems which are the community property of proprietors of premises (point 18 Corrected № 124). Relations under the maintenance of the community property belonging on the right of the general common property to proprietors of premises in an apartment house are regulated by Rules №491.

In our opinion, the most frequent infringement of requirements to quality of a submitted resource is non-observance of a temperature mode of hot water supply. Proceeding subparagraph positions "d" point 22 of Rules № 354 in case of delivery resursosnabzhajushchej the organisation of a municipal resource of inadequate quality or with the breaks exceeding established duration, the size of a payment for a municipal resource changes in an order defined by Rules of granting of utilities.

According to requirements of the Appendix of №1 Rules № 354 according to which in a point of analysis the temperature of hot water should be not less than 60 degrees for open systems of the centralised heat supply, but no more than 75 degrees for any systems of the centralised heat supply (taking into account SanPiN 2).

Owing to point 2 of article 19 of the Federal act «About sanitarnoepidemiologicheskom well-being of the population» the [214] organisations which are carrying out hot water supply, cold water supply with use of the centralised systems of hot water supply, cold water supply, are obliged to provide conformity of quality hot and potable water of the specified systems to sanitary-and-epidemiologic requirements.

At occurrence of a disputable situation about a temperature mode of the submitted hot water, i.e. in case of occurrence of a question on on how many the water temperature corresponds to shown requirements and if mismatches - who should bear responsibility, it is necessary to pay attention to the concrete contract resursosnabzhenija regarding borders of a balance accessory.

Out of any doubts, the contract parties resursosnabzhenija the question of updatings of cost of a resource taking into account the submitted volume of a poor-quality resource in total amount in a voluntary order, for example, having directed each other has the right to settle adjustment certificates and accounts with instructions of the period and the basis of recalculations. In a case of finishing of dispute to court, in two remedial variants, recalculation of a payment for the put poor-quality resource is possible:

1) In case of the debt collection under the contract resursosnabzhenija under the claim resursosnabzhajushchej the organisations to the operating organisation-subscriber. During proceeding the court defines the valid actual volume of the qualitative submitted and consumed resource, therefore the subscriber can ask to consider such updatings (i.e. to prove, that regarding the disputable period the submitted resource mismatched requirements of the law and sanitary requirements) 1.

2) In case of a several action presentation already from the most operating organisation-subscriber with the requirement about objazanii to make recalculation of the size of a payment for the given municipal resource of inadequate quality. The subscriber thus forces resursosnabzhajushchuju the organisation to consider the fact of delivery of a resource of inadequate quality for the concrete period and to make payment recalculation. [215 [216]

Let's pay attention, that the onus of proving of a poor-quality municipal resource is assigned to the subscriber referring to given circumstances, and in the absence of competent evidences (timely letters, claims, certificates and pr), in recalculations of volume of poor-quality energy in total amount of a resource courts отказывают.1

As fairly marks Brynova T.I., the most part of quarrels at law on which arguments of subscribers were declared inadequate quality of delivered municipal resources energosnabzhajushchimi by the organisations, is authorised vessels in favour of the last. Courts critically estimate the documents represented by consumers (subscribers) in a substantiation of the fact of delivery of a municipal resource of inadequate quality as such proofs in overwhelming majority of cases mismatch requirements of norms of the current legislation. [217 [218]

Responsibility resursosnabzhajushchej the organisations can come also in connection with duty infringement to submit to the subscriber energy in necessary quantity. And on the contrary, with the requirement about quantity of released energy also the legislation responsibility of the subscriber communicates at excess of volumes of consumed energy.

The quantity of various kinds of resources comes under to definition in corresponding units of measure. So, the quantity of electric energy is measured in kilowatt-hours, quantity of thermal energy - in calories, quantity of water (drains), gas - in cubic metre. Besides, specific features of consumption of electric energy

Predetermine necessity of the coordination at making contract of power supply not only quantity of kilowatt-hours coming under to holiday, but also sizes of the attached or declared capacity released электроэнергии1. Thus total contractual sizes of consumption of electric energy and size of the declared capacity on which giving energosnabzhajushchaja the organisation concludes dogovory with the subscribers, should not exceed possibilities of this organisation on manufacture or acquisition at manufacturers of the electric power (capacity) in sufficient for supply of all subscribers.

The establishment of quantity submitted resursosnabzhajushchej the organisation and the resource consumed by the subscriber is carried out according to data of devices of the account about its actual consumption. The account order is defined by departmental normative acts (Rules of the account of electric energy, utv. Ministry of Fuel and Energy of Russia on September, 19th, 1996 and Minstroem Russia on September, 26th

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1996). In overwhelming majority of cases, on border of a balance accessory of electric and thermal networks resursosnabzhajushchej the organisation and the executor the account of giving electric and thermal energy is made. In this point counters are established.

The responsibility following from non-observance by the subscriber of a duty to provide an appropriate technical condition and safety of maintained power networks, devices and the equipment to observe the established mode of consumption of energy, and also immediately to inform energosnabzhajushchej the organisations on failures, about fires, malfunctions of devices of the account of energy and about other infringements arising at using by energy (point 1 of article 543 GK the Russian Federation).

Points 1.2.2., 2.11.15., 2.11, 17., 2.11.19. User Rules for Operating Electrical Equipment approved by the Order

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Ministry for the Power Generating Industry of the Russian Federation № 6 from 13.01.2003, the consumer duty is provided to provide the maintenance of electroinstallations in an efficient condition and them [219 [220] [221] operation according to the requirement of the present rules, safety rules and other normative and technical documents, and also a consumer duty (the personnel energoobekta) to provide safety and integrity of devices of the commercial account, and also the consumer obligation to support in a condition, to answering technical requirements, and to provide checking, replacement of devices of the account carried to its balance and operational responsibility.

On the basis of point 172 of Substantive provisions of functioning of the retail markets of electric energy of check of settlement devices of the account are carried out by the network organisation. Concerning thermal energy account the Technique of definition of quantities of thermal energy and heat-carriers in water systems of a municipal heat supply, utv operates. The order of Gosstroy of the Russian Federation from 06.05.2000 № 105 [222].

According to a part of 5 articles 15 of the Law № 261-FZ to provide equipment of the houses by devices of the account used waters, natural gas, thermal energy, electric energy, and also input of the established devices of the account in operation proprietors are obliged. The proprietor should bear burden of the maintenance of property belonging to it (article 210 GK the Russian Federation, article 158 ZHK the Russian Federation). Owing to a part of 3 articles 30 ZHK the Russian Federation is established a duty of the proprietor of premises to bear burden of its maintenance. From here follows, that the proprietor bears also expenses on realisation of replacement of the counter mismatching requirements.

In cases if the proprietor does not pay or cannot pay cost of the device of the account and its installation in one stage resursosnabzhajushchaja the organisation is obliged to give instalments on payment of the given property and service within 5 years. The percent for the credit is established under the rate of refinancing of the Central Bank of the Russian Federation. The contract on payment instalments consists in such cases.

Let's pay attention, proprietors, should pay resursosnabzhajushchim to the organisations expenses on installation of devices of the account and their delivery to installation sites of devices of the account if they do not execute in time the given duty.

On the basis of the analysis of positions of the Law № 261-FZ it is necessary to draw following practical conclusions which can be useful to all proprietors of premises:

S Operation of not believed counter is forbidden, moreover, is regarded resursosnabzhajushchej by the organisation as neustanovlenie the account device.

S proprietors and employers of premises with anybody to adjust the Establishment of intraroom counters are not obliged.

S At the same time, the counter needs to be placed in operation. It is realised in the presence of representatives of the operating organisation who are necessary for inviting for drawing up of the corresponding certificate of the admission of the device in operation.

S the Proprietor independently chooses counter type, however the account device should be included in the State register of gauges of the Russian Federation, and also have certificates on conformity and a brand of the state checking.

S the account Device comes under to checking in the organisation having the necessary licence, and periodicity of such checking should be specified in characteristics sheet in the counter.

It is important to notice also, that the Law № 261-FZ makes amendments to the Code of the Russian Federation about administrative violations [223], for example in article 9.16 KoAP the Russian Federation

Feature of the onus of proving of volumes of a resource taking into account that data on indications of devices of the account the subscriber as the operating organisation owns only, is opened in the Decision of Presidium YOU the Russian Federation from 25.02.2014 № 15259/13.

The law № 261-FZ on the organisations supplying with water and other resources, assigns a duty on installation, replacement and operation of devices of the account, including individual, in case of the reference to them of consumers (a part 9, 12 articles 13 of the named Law). The law № 261-FZ does not provide obligatory participation in acceptance in operation established (including by forces of other executors) account devices.

By rules № 354 it is provided, that input of the established device of the account in operation, that is documentary registration of the device of the account as the account device under which indications calculation of the size of a payment for utilities is carried out, (point 81) is carried out by the executor of utilities on the basis of the demand of the proprietor of the inhabited or uninhabited premise, submitted to the executor.

The list of documents which the executor of utilities is obliged to present resursosnabzhajushchej the organisations, is certain by points 6 and 7 Rules № 124. In them certificates of commissioning of individual devices of the account are not specified. Moreover, point 8 of Rules № 124 resursosnabzhajushchej the organisations are forbidden for demanding from the executor of representation of the documents which have been not provided by these Rules.

Thus, proceeding from the described norms and the above-stated judicial explanation, the subscriber is not obliged to represent resursosnabzhajushchej the organisation the documents confirming acceptance of individual devices of the account in operation.

Therefore, critically it is necessary to concern, for example, Starchenkovoj V.V. conclusion according to which for correct application in relations between the executor of utilities and resursosnabzhajushchej the organisation of the formula specified in the appendix to Rules № 124, to parties of dispute should be had proofs of input of individual devices of the account in operation and data of individual devices of the account on the beginning and the end of the settlement period. In the absence of such proofs courts collect debts for the put resource, proceeding from the specification of consumption which includes resource consumption on obshchedomovye нужды.1 Differently, such interpretation of rules of law already obsolete.

The most popular responsibility of the subscriber - the executor of utility before resursosnabzhajushchej the organisation on frequency of application is the compulsory duty to pay on debts for accepted, but an unpaid resource, and also a duty to bear the accompanying penal actions connected with infringement of an order of payment.

Owing to articles 309, 310, 408, 539 GK the Russian Federation the subscriber should execute the accepted obligations regarding payment properly according to conditions of the obligation and requirements of the law, other legal acts, and in the absence of such conditions and requirements - according to customs of a business turn or other usually shown requirements only appropriate discharge of duty on payment of the accepted resource will cease its obligation.

In case the contract of the party have not provided the penalty for an untimely payment for a municipal resource point 1 of article 395 GK the Russian Federation comes under to application, that is percent on the amount due can be collected. Proceeding from point 2 of the Decision of Plenum VS the Russian Federation and Plenum YOU the Russian Federation

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From October, 8th, 1998 № 13/14 at calculation of annual percent coming under to payment under the rate of refinancing of the Central bank Russian [224 [225]

Federations the number of days in a year (month) is accepted to 360 accordingly 360 and 30 days if other is not established by the agreement of the parties, obligatory rules for the parties, and also customs of a business turn. Percent can be added up to the moment of actual execution of the liability which is defined proceeding from conditions about an order of payments, to the form of calculations and positions of article 316 GK the Russian Federation about a place of execution of the liability, except for cases, statutory or the agreement of the parties.

According to points 50, 51 Decisions of Plenum VS the Russian Federation № 6 and Plenum YOU the Russian Federations № 8 from 01.07.1996 1 percent provided by point 1 of article 395 GK the Russian Federation, come under to payment irrespective of, whether another's money resources according to the contract or in the absence of contractual relations are received. Thus, according to an explanation as using another's money resources it is necessary to qualify also unpaid amount by the debtor of sums of money for the goods transferred to it, the performed works, the rendered services.

Let's note, thus, the claimant should be the initiator of collecting of percent for untimely payment on debts for utilities (resursosnabzhajushchaja the organisation), court to collect percent is independent cannot.

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Moreover, owing to a remedial rule of article 65 of agrarian and industrial complex of the Russian Federation about a proving duty, the claimant should give the proved and clear calculation of such percent. As a rule, the formula of calculation with the sum of the debts which are coming under to application by the rate of bank percent, the period of delay with instructions of calendar dates (for example is underlined: 2 590 000 [226] [227] roubles * 8,25 % * 1/360 * 150 days (11.09.2014 - 10.02.2015) = 89 031,25 roubles).

The power supply contract other penal action which is distinct from percent - the penalty (the penalty, penja) can be provided, owing to the principle of freedom of the contract fixed standard (articles 1, 421 GK the Russian Federation) its application does not contradict requirements of special laws.

The penalty is one of the most widespread ways of maintenance of the execution of a contract, put in pawn still right imperial России1. Penalty payment falls as under a category of "additional burden» (accessory obligation), and under a category of "equivalent losses», coming for the debtor owing to the infringement admitted by it. Traditionally in the domestic civil doctrine it is marked compensatory and penal functions of the penalty. [228 [229]

Owing to articles 329, 330 GK the Russian Federation execution of obligations can be provided with the penalty, that is defined by the law or the contract a sum of money which the debtor is obliged to pay to the creditor in case of default or inadequate execution of the obligation, in particular in case of delay in performance.

If the penalty coming under to payment is obviously disproportionate to consequences of infringement of the obligation, the court has the right to reduce the penalty (a part of 1 article 333 GK the Russian Federation). The penalty by the nature is way of maintenance of execution of obligations, its size can be challenged both on the occurrence basis, and on the size, and in the presence of dispute - is reduced by court on the basis of article 333 GK the Russian Federation. [230]

At the same time, it is necessary to consider, that according to the decision of Plenum YOU the Russian Federation № 81 from 22.12.2011"About some questions of application of article 333 of the Civil code of the Russian Federation» 1, proceeding from a principle of realisation of the civil rights the will and in the interest (article 1 GK the Russian Federation) the penalty can be lowered court on the basis of Code article 333 only in the presence of the corresponding statement from the respondent. Thus the respondent should present proofs of obvious disproportion of the penalty to consequences of infringement of the obligation.

Speaking about disputes concerning volume and quality of the municipal resource, considered in arbitration courts, and also about infringements of an order of payment and incomplete payment of a resource, in our opinion, it is necessary to pay attention to the following remedial rule of proving provided by a part 3.1. Articles 70 of agrarian and industrial complex of the Russian Federation. According to the given norm of circumstance to which the party in a substantiation of the requirements or objections refers, are considered recognised as other party if they directly are not challenged by it or disagreement with such circumstances does not follow from other proofs proving presented objections concerning a being of declared requirements. If the respondent-subscriber is not in litigation and, accordingly, has not challenged circumstance to which other party (the claimant-resursosnabzhajushchaja the organisation) the court can consider as their proven facts (obobshchenno speaking, "by default") refers. Such toughening of process can guard, but, on the other hand, it provides competitiveness of the parties, as all participants of process are interested in direct presence at session to recognise or confute arguments of opponents.

There is one more clear advantage from stated, first of all for the arbitration court: necessity to prove all circumstances to which the party refers in the arguments (less disappears

L

Remedial time and the text in decisions). It can concern as [231 [232] volumes, qualities of the submitted energy, and actual payment, the size of a debt and even calculation of penal actions. The specified norm strengthens a principle of optionality of the arbitral procedure establishing a presumption of the validity not challenged фактов1

Between the parties arguing in court quite often arises nedoponimanie concerning the valid volume of the consumed municipal resource within the limits of the declared period. Without application of special knowledge to resolve dispute on volume of the accepted resource often it is not obviously possible, and the decree should be based on conclusions of the examination spent judicially. Optimum questions which are necessary for putting before the expert, are the following:

1) What total amount of a municipal resource (in kilowatt-hours, calories, in cubic metre), put by the enterprise for the contract resursosnabzhenija №XXXX from XXXX subscriber during XXXX?

2) What size of debt receivable the subscriber before the enterprise for the contract resursosnabzhenija №XXXX from XXXX during XXXX has? [233 [234]

Summing up, it is necessary to notice, that disputes on questions of a responsibility of the parties of the contract exist both in the theory, and in practice.

Now a responsibility of the parties of contractual relations on resursosnabzheniju in housing and communal services system though it is standard and it is provided, however there is no strict list of kinds and responsibility measures resursosnabzhajushchej the organisation and the subscriber. Thus, as we specified, only on some questions of responsibility there is a developed and invariable practice. Unfortunately, responsibility questions in each concrete case depend on an available judicial explanation at present on concrete affairs which can change further. However, it is caused by character of considered relations: resursosnabzhenie and housing and communal services never were and there will be no in a stable condition, and the processes proceeding in these spheres, demand operative intervention, constant regulation taking into account occurring changes.

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A source: Kantser Jury Aleksandrovich. Civil-law regulation of relations on resursosnabzheniju housing and communal services of Russia. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2016. 2016

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