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3.1. Judicial protection of property rights and legitimate interests of the clients using bank payment cards

Judicial protection is closely connected with civil responsibility. Protecting the rights and legitimate interests of bank clients, the court simultaneously applies to banks-offenders of a measure of civil responsibility­: the indemnification, penalty, percent or ­ indemnification of moral harm etc.

Civil responsibility of participants of settlement relations ­ in objective sense is an institute of civil law, set of homogeneous civil-law norms, means and the ways directed on the prevention, suppression and the offence termination, restoration of initial position by deterioration of a property status of the infringer, acceptance to it of measures of property character (sanctions, penalties­), compensation (indemnification) of the caused losses (harm) in ­ a statutory order by means of the authorised (competent) authorities.

Civil responsibility in the subjective plan is an ability and the legal obligation of the offender to undergo ­ measures of state-imperious, compulsory,­ civil-law (property) influence taken concerning it ­ for the purpose of the prevention,­ suppressions and the terminations of an offence, compensation (indemnification­) of the caused losses (harm).

Judicial protection of property rights of participants of the clearing settlement ­ using bank payment cards, is one of independent legal forms of protection of the subjective civil rights which are carried out by a sou ­
the house on the basis of the constitutional, civil-law and remedial principles, norms under the prevention, suppression, a recognition and restoration ­(to compensation, indemnification) the broken (challenged) rights with ­ use of lawful means and receptions. In objective sense is active courts of justice on application of ways ­ of civil-law protection not contradicting the law ­ and civil responsibility measures in ­ a statutory order for the purpose of realisation constitutional and ­ the right for judicial protection, satisfaction of requirements and legitimate interests of subjects of civil law, achievement of optimum balance private and public interests, strengthening of the social world in a civil society. Judicial-Tsivilistichesky protection in subjective aspect is ­ an ability of subjects of civil law to operate definitely, to carry out the rights, to demand from other persons of corresponding ­ behaviour under the threat of state-imperious compulsion, to resort ­ to the help of the state for the purpose of protection (restoration) of the broken ­ rights.

Ways of civil-law protection are legal means, receptions (set of methods), methods of achievement of the purposes of civil-law protection,­ elements of the mechanism of civil-law protection, statutory,­ the contract, legal customs, obyknovenijami the uniform judiciary practice,­ corresponding to principles of a rationality, justice and conscientiousness,­ character and an offence being, limits (restrictions) of protection ­ and applied both carriers of the subjective civil rights, and competent law-enforcement and courts of justice in ­ a statutory order (for example, item 2 item, 5, 9 - 11 GK the Russian Federation). GK the Russian Federation contains the approximate list of legal branch (civil-law) protection frames of the rights of participants of the settlement relations using as electronic instruments of payment bank payment cards (item 12 - 16.1).

Other federal acts can contain additional ways of protection (see, for example, the item 12 GK the Russian Federation). Exist preventive, presekatelnye,
grateful, compensatory-regenerative, penal and ­ protection different ways­. Such basic ways of protection as the indemnification, ­ collecting of percent, penalties (peni, the penalty), indemnification of moral harm can be simultaneously civil responsibility measures: ­ protection of the authorised persons is accompanied by attraction of infringers to ­ legal responsibility, and attraction of guilty persons to responsibility ­ leads, finally, to protection of the persons who have sustained from wrongful acts guilty.

Judicial protection of rights and legitimate interests of bank clients (physical persons) amplifies the mechanism of protection of the rights of consumers­. In many cases, physical persons, being bank clients, ­ whom payment services of noncommercial character for personal are rendered (the consumer purposes) the commercial organisations while translating ­ money resources by means of bank accounts, payment cards, are ­ simultaneously and, accordingly, use consumers effective ways ­ of legal protection of the rights of consumers [249] .

it is necessary to notice, that scientific-theoretical research tsivilistiche - skih problems of protection of the rights of the Russian consumers is at high enough level. V.P.Isachenko, S.V.Pahman, K.P.pobedonostseva's proceedings testify to it, F.I. G.F.Shershenevicha, N.A.Barinov, V.V. Bogdan, A.A.Vlasovoj, A.V.Dashko, K.F.Egorov, A.J.Kabalkina, JA.A.kuni ka, V.P.Mozolina, E.A.Sukhanov, L.A.Shashkovoj, L.V.ShChennikovoj, A.E.Sherstobitova, A.M.Erdelevsky, V.A.Jazeva, V.F.Jakovleva, etc.

It is necessary to underline, that in spite of the fact that relations between ­ the consumer and the executor are regulated by the Civil code of the Russian Federation, the Law on protection of the rights of consumers, other federal acts and are accepted ­
mi according to them other regulatory legal acts of the Russian Federation, the Law on protection of the rights of consumers is applied in the part ­ which have been not settled by special laws. Taking into account norms of item 39 of the Law on protection of the rights of consumers to relations which arise from contracts on rendering of separate types of service with participation of citizens, consequences of which infringement of conditions do not come within the purview of the chapter III of the given Law, general provisions of this Law, including norms about the right of citizens to ­ information granting ­(item 8 - 12), about a liability of infringement of the rights of consumers ­(item 13), about harm compensation (item 14), about indemnification of moral harm (item 15), about the co-ordinate jurisdiction (item item 2 are applied ­­ 17), about clearing of ­ state duty payment ­(item 17 item 3) [250] .

the Law on protection of the rights of consumers allocates citizens with additional powers on protection of the rights in sphere of the settlement relations connected with quality (for) executions, the information on character of executed service­. The Bank-executor is obliged to render payment service in time, provided ­ by rules of rendering of financial services or the contract on rendering of services. In case of infringement of such term the consumer has the right at the choice: ­ to establish new term; to charge service rendering to other persons-executors (for the reasonable price) or to execute it by own strength with indemnification of the suffered expenses; to demand price reduction for the rendered poor-quality service; to refuse execution of a contract. The consumer has the right to demand the full indemnification of the losses caused to it in connection with infringement of terms of rendering of service [251] . The bank is obliged to pay to the client (on request of the last) ­ the penalty (penju) at a rate of three percent of the price of rendering of service in case of its delay per every day (hour) of delay (the contract on rendering of services mo ­
zhet to be provided higher size of the penalty (peni). Thus the sum of the collected penalty (peni) cannot exceed the total price which has been not provided by the contract. Lawful basises of clearing of bank from property responsibility in the stated situation are ­ force majeure or fault of the consumer (item 27 item - 28).

At detection of lacks of the rendered service the client-physical person has the right to demand at the choice: gratuitous elimination of the revealed lacks of the rendered service, corresponding reduction of the price of the performed ­ work (the rendered service); gratuitous repetition of service; compensation ­ of the suffered expenses on elimination of lacks of the rendered service) ­ by own strength or forces of the involved persons with payment of the lawful or contractual penalty. The consumer can refuse execution of service and demand the full indemnification of losses if in contractual term lacks of the rendered service are not eliminated by the executor. The consumer can refuse ­ execution of a contract about work performance (service rendering) if it finds out essential lacks of the rendered service or other essential deviations ­ from treaty provisions. Essential lacks of service are ­ ineradicable either numerous lacks or lacks which cannot be eliminated without execution of disproportionate expenses or time expenses. ­ The consumer has the right to demand the full indemnification of the losses caused to it in connection with lacks of performed work (the rendered service) (item 29 of the Law on protection of the rights of consumers).

the Important component of the mechanism of protection of the rights of users of payment (financial) services is the right to the information and, accordingly, the right of defence of this leading kind of the consumer rights. According to the law on protection ­ of the rights of consumers, already in precontractual the period the consumer has the right ­ to demand granting necessary and a trustworthy information in the evident and accessible form (including an information-telecommunication network ­"Internet") about the executor, a mode of its work and rendered services. ­ The duty is assigned to ­ the executor to inform of the consumer firm
the name of the organisation, a place of its finding and a mode of its work, ­ the information on a kind of activity of bank-executor, and the maintenance of the licence (certificate) according a right on employment by a certain kind ­ of professional work. The information on the goods (works, services) ­ without fail should contain: Data on the basic consumer properties of rendered service, its costs, about rules of rendering of payment services (item 8 item - 11).

If in making contract ­ possibility of operative reception of the information on character of forthcoming ­ contractual service is not given the client of bank,­­ he has the right to demand from the executor of the indemnification, caused by unreasonable evasion from making contract and if ­ the contract is concluded, - to refuse in reasonable term its execution and to demand restoration of initial position, compensation of the caused losses­. The Client-consumer has the right to show at the choice to the bank ­ organisation (counterpart) who has not given to the client full and a trustworthy information about forthcoming service, in case of detection of lacks after its rendering owing to non receipt of such information, following requirements­: to replace with other equivalent service with recalculation of the sum of the suffered expenses; proportional reduction of the price of execution; Operative gratuitous ­ elimination of lacks of the rendered service or the reimbursement for its correction by the consumer or the third party; refusal of execution of a contract with return of the sum of money paid for execution. Thus the consumer also has the right to demand the full indemnification of the losses caused to it owing to rendering of poor-quality service. Considering cases such, the court should start with the assumption of absence at the consumer of special ­ knowledge about properties and characteristics of the forthcoming or rendered service ­(item 12 item, 18, 29 Laws on protection of the rights of consumers).

the Subject of quarrels at law frequently appears not only the precontractual ­ information, but also the information in execution of the settlement ­ obligation. The executor (bank) is obliged to inform beforehand to the consumer
(client) on circumstances which can affect quality of rendered ­ service or to entail impossibility of its timely execution­. At the same time, if the consumer, despite the timely and proved ­ informing by the executor, in reasonable term does not change instructions on a way of rendering of service or will not eliminate other circumstances which can lower quality of rendered service, the executor has the right to refuse ­ to demand from ­ execution of a contract the full indemnification of losses (item 37.

the legislation and judiciary practice Analysis, shows, that the basic ­ ways of protection of the rights of physical persons-consumers (participants of settlement ­ legal relations) are: the indemnification, collecting of percent, penalties (peni), indemnification of moral harm.

the Listed ways of protection of the rights of consumers are applied in ­ a simultaneous or independent mode (for choice the consumer) and operate on the basis of basic positions of protection of the rights of consumers: 1) a principle of a harmonious combination of the private-law and public beginnings; 2) a principle ­ of the state support of protection of the rights of consumers; ­ an informing principle­; a principle of restriction of freedom of the contract; 3) a principle of protection ­ of weakness [252] .

the Losses caused to the consumer, come under to compensation in the full sum over the penalty (peni), statutory or the contract, ­ except for force majeure cases, and other cases, statutory. The indemnification and penalty payment (peni) do not release ­ the organisation-executor of settlement-bank services from execution ­ of the duties assigned ­ to it in nature. The court collects from bank the penalty at a rate of ­ fifty percent from the sum awarded by court in favour of the consumer, for non-observance in a voluntary order of satisfaction of requirements of the consumer ­(item 13 of the Law of the Russian Federation about protection of the rights of consumers).

the Moral harm caused to the consumer, comes under to indemnification at an establishment of the fact of infringement of the rights of the consumer, preterpevanija to them moral and corporal hurts. The size of indemnification of moral harm is defined by court without dependence from the size of the compensated property damage ­ taking into account principles of a rationality, justice and conscientiousness, degree of fault of the offender, degree and character of the physical and moral ­ sufferings connected with specific features of the person, other worthy circumstances [253] .

the Russian courts of the general jurisdiction bring the essential contribution to protection ­ of the rights and legitimate interests of bank clients-consumers. Statistical data of annual disposal of legal proceeding,­ difficult categories of the considered affairs and ­ the decisions stated in the reasoning testify to it ­­ substantiated conclusions of vessels, in particular­­.

So, on one of the considered affairs it was found out, that citizen S ­ has addressed in court with the claim to Open Society «Savings Bank of Russia» about penalty for infringement of target dates of execution of service and indemnification of moral ­ harm. By court it has been established, that the division of the respondent carried out non-cash transfer of money resources by request of S, however after a while gr-ke S have informed, that electronic money resources into the account of the addressee ­ have arrived with the big delay. During office check it was found out,­ that at filling of requisites of transfer the error has been admitted. The statement ­ for transfer was filled by means of the computer with the employee of the Savings Bank of Russia on the basis of the hand-written requisites transferred to it istitsej. Operatsionnokassovyj ­ the worker of branch of the Savings Bank has committed an error regarding incorrect ­ reflexion in bank documents of requisites of the addressee owing to what the transfer contract has been executed out of time. The bank branch prizna ­
lo the fault also has voluntary paid istitse percent for using its ­ money resources. The regional court has satisfied requirements S, but in smaller ­ volume of the declared requirements. The court of appeal instance ­ considering reclaiming petition S, has left without change ­ the first instance decree,­ having specified thus on important for pravoprimenitelja, clients and researchers of circumstance. The appeal court has explained, that from the respondent inadequate (untimely) rendering of service in transfer of money resources of the istitsy-consumer took place, and the respondent has not been prove ­ the circumstances which are relieving from its responsibility for inadequate execution of the monetary-settlement obligation. Therefore the trial court has come to a substantiated conclusion about penalty and indemnification ­ of moral harm. The size of indemnification corresponds to requirements GK the Russian Federation (item 151 and 1101) and the Law on protection of the rights of consumers (the item 15) [254] .

On other lawsuit the claim to gr th TS about a recognition ­ illegal refusal of the bank organisation of execution of treaty provisions ­ about transfer of money resources and indemnification of moral harm has not been satisfied ­­ whereas ­ the fact of refusal of the respondent in reception and transfer of money resources ­ has not proved to be true: all money resources brought by the claimant have been accepted by the employee ­ of bank and sent to specified

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A source: Klochihin Vyacheslav Anatolevich. CIVIL-LAW REGULATION of SETTLEMENT OPERATIONS With USE of BANK CARDS. The DISSERTATION on competition of a scientific degree of the master of laws. Kursk 2019. 2019

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